                                                                           FILED
                             NOT FOR PUBLICATION                            JUN 25 2013

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




                              FOR THE NINTH CIRCUIT



MARCELO ROEL ESTEBAN                              No. 11-70786
CISNEROS, a.k.a. Mario Lopez,
                                                  Agency No. A071-588-200
               Petitioner,

  v.                                              MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



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

                             Submitted February 26, 2013 **

Before:        HUG, FARRIS, and LEAVY, Circuit Judges.

       Marcelo Cisneros, 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 (“IJ”) decision denying his applications 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 the agency’s

factual findings for substantial evidence, Zhou v. Gonzales, 437 F.3d 860, 864 (9th

Cir. 2006), and we deny the petition for review.1

      Cisneros does not challenge the BIA’s holding that he was convicted of an

aggravated felony, and he therefore is ineligible for asylum. See Martinez-Serrano

v. INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996) (holding that issues not specifically

raised and argued in a party’s opening brief are waived); see also 8 U.S.C. §§

1158(b)(2)(A)(ii), 1158(b)(2)(B)(i); Lopez-Cardona v. Holder, 662 F.3d 1110,

1111-12 (9th Cir. 2011) (recognizing that a conviction for an aggravated felony

makes an alien statutorily ineligible for asylum).

      Cisneros contends that, when deciding that he was ineligible for withholding

of removal, the IJ and BIA were required to determine whether his prior conviction

constituted a particularly serious crime. We reject that contention because it was

not necessary for either the IJ or the BIA to determine whether Cisneros was

convicted of a particularly serious crime since both the IJ and the BIA determined

that Cisneros failed to meet his burden of proof for withholding of removal. See

INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts and



      1
        Because the parties are familiar with the facts and procedural history
underlying this appeal, we do not recount them here.

                                          2                                      11-70786
agencies are not required to make findings on issues the decision of which is

unnecessary to the results they reach.”); see also Simeonov v. Ashcroft, 371 F.3d

532, 538 (9th Cir. 2004).

      Cisneros relies on Matter of Chen, 20 I. & N. Dec. 16 (BIA 1989), to argue

that he is entitled to CAT relief because of his past experiences in Guatemala. This

reliance on Chen is misplaced. Chen has been codified at 8 C.F.R. §

208.13(b)(1)(iii)(A), which is limited to claims for asylum and does not apply to

applicants such as Cisneros who have been convicted of aggravated felonies. See 8

C.F.R. §§ 208.13(b)(1)(iii)(A) & (c)(2)(i)(D). Cisneros does not contend that the

record compels a finding that it is more likely that not that, if he is removed, he

will be tortured. He therefore has waived that issue. See Martinez-Serrano, 94

F.3d at 1259-60 .

      PETITION FOR REVIEW DENIED.




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