                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 01 2010

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




                            FOR THE NINTH CIRCUIT



ROBERTO MARTINEZ LEYVA,                          No. 05-75989

             Petitioner,                         Agency No. A095-303-201

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

             Respondent.



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

                             Submitted July 22, 2008 **
                             San Francisco, California

Before: B. FLETCHER, THOMAS and WARDLAW, Circuit Judges.

       Roberto Martinez Levya, a native and citizen of Mexico, 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 and withholding

of removal, and denying his motion to remand. We have jurisdiction under 8

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
U.S.C. § 1252. We review for substantial evidence and will uphold the agency’s

decision unless the evidence compels a contrary conclusion. INS v. Elias-Zacarias,

502 U.S. 478, 481 n.1 (1992). We review for abuse of discretion the denial of a

motion to remand. See Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir.

2005). We deny the petition for review.

      The record does not compel the conclusion that extraordinary circumstances

excuse the untimely filing of Martinez Levya’s asylum application. See 8 C.F.R. §

1208.4(a)(5); Husyev v. Mukasey, 528 F.3d 1172, 1182 (9th Cir. 2008).

Accordingly, the asylum claim is denied. Because Martinez Levya did not raise

the issue to the IJ or BIA, we lack jurisdiction to consider whether the agency erred

in interpreting the term “minor” in 8 C.F.R. § 1208.4(a)(5)(ii) to refer to persons

under eighteen years of age, as opposed to persons under twenty-one years of age.

See Rojas-Garcia v. Ashcroft, 339 F.3d 814, 819 (9th Cir. 2003) (“Before a

petitioner can raise an argument on appeal the petitioner must first raise it before

the BIA or the IJ.”) (citing 8 U.S.C. § 1252(d)). We note that Martinez Levya was

twenty-two years of age at the time of his merits hearing before the IJ and his

appeal to the BIA.

      We deny the petition with respect to the withholding of removal claim

because Martinez Levya failed to show that the government, or groups that the


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government is unable or unwilling to control, persecuted him in the past or that he

faces a clear probability of future persecution by such groups or the Mexican

government. See Castro-Perez v. Gonzales, 409 F.3d 1069, 1072 (9th Cir. 2005).

      The BIA did not abuse its discretion in denying Martinez Levya’s motion to

remand because the motion was not supported by evidence showing prima facie

eligibility for relief. Ordonez v. INS, 345 F.3d 777, 785 (9th Cir. 2003).

      PETITION FOR REVIEW DENIED.




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