                                                                           FILED
                             NOT FOR PUBLICATION                            JUL 21 2011

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



CRECENCIO JORGE LOPEZ-DIAZ,                      No. 08-74924

               Petitioner,                       Agency No. A072-401-361

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



                      On Petition for Review of an Order of the
                          Board of Immigration Appeals

                             Submitted July 12, 2011 **

Before:        SCHROEDER, ALARCÓN, and LEAVY, Circuit Judges.

       Crecencio Jorge Lopez-Diaz, a native and citizen of Guatemala, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal

from an immigration judge’s decision denying his application for asylum,

withholding of removal, and protection under the Convention Against Torture


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
(“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review de novo

questions of law and for substantial evidence factual findings. See Wakkary v.

Holder, 558 F.3d 1049, 1056 (9th Cir. 2009). We deny the petition for review.

      Substantial evidence supports the agency’s determination that Lopez-Diaz

failed to establish he suffered harm rising to the level of persecution. See Lim v.

INS, 224 F.3d 929, 936-37 (9th Cir. 2000) (mail and telephone death threats to

petitioner on NPA death list did not compel a finding of past persecution).

Because Lopez-Diaz did not establish past persecution, his apparent contentions

that he is entitled to a presumption of future persecution and to humanitarian

asylum necessarily fail. See Molina-Estrada v. INS, 293 F.3d 1089, 1096 (9th Cir.

2002); 8 C.F.R. § 1208.13(b)(1)(iii). Substantial evidence also supports the

agency’s conclusion that Lopez-Diaz failed to establish a well-founded fear of

persecution and a clear probability of future harm on account of a protected ground

following the 1996 peace accords. See Molina-Estrada, 293 F.3d at 1095-96

(petitioner did not show good reason to fear future persecution from guerrillas

where Guatemalan civil war ended in 1996 and petitioner failed to present

sufficient countervailing evidence supporting his fear). Accordingly, Lopez-Diaz’s

asylum and withholding of removal claims fail.




                                           2                                     08-74924
         In addition, substantial evidence supports the agency’s denial of CAT relief

because Lopez-Diaz failed to establish it is more likely than not that he would be

tortured at the instigation of or with the acquiescence of the government if

removed to Guatemala. See Silaya v. Mukasey, 524 F.3d 1066, 1073 (9th Cir.

2008).

         We reject Lopez-Diaz’s cursory challenge to the BIA’s decision not to

address his due process claim. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-

60 (9th Cir. 1996) (issues not specifically raised and argued in a party’s opening

brief are waived). We also reject Lopez-Diaz’s unsupported statement that there is

a “routine practice” of keeping cases at the asylum office for more than a decade.

Finally, we lack jurisdiction over the Attorney General’s decision to “commence

proceedings,” see Jimenez-Angeles v. Ashcroft, 291 F.3d 594, 598-99 (9th Cir.

2002) (construing 8 U.S.C. § 1252(g) and concluding court lacked jurisdiction over

claim INS had to immediately initiate deportation proceedings against petitioner

when she presented herself to the agency), and Lopez-Diaz has not otherwise

presented a colorable due process claim regarding the delay in his case, see Torres-

Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir. 2001).

         PETITION FOR REVIEW DENIED.




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