                                                                           FILED
                             NOT FOR PUBLICATION                            APR 26 2011

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




                             FOR THE NINTH CIRCUIT



EVELIO SANDOVA-GRIJALVA,                         No. 08-71103

               Petitioner,                       Agency No. A070-946-325

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

               Respondent.



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

                              Submitted April 5, 2011 **

Before:        B. FLETCHER, CLIFTON, and BEA, Circuit Judges.

       Evelio Sandova-Grijalva, a native and citizen of Guatemala, petitions for

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

from the immigration judge’s (“IJ”) 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”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for

substantial evidence the agency’s factual findings. Santos-Lemus v. Mukasey, 542

F.3d 738, 742 (9th Cir. 2008). We deny in part and dismiss in part the petition for

review.

      Even if Sandova-Grijalva’s asylum application was timely, substantial

evidence supports the agency’s finding that his incident with the guerrillas did not

rise to the level of persecution. See Gu v. Gonzales, 454 F.3d 1014, 1019-21 (9th

Cir. 2006) (brief detention, beating and interrogation did not compel a finding of

past persecution). In addition, given the changed country circumstances in

Guatemala, and Sandova-Grijalva’s inability to explain why anyone would be

interested in him now, substantial evidence supports the agency’s conclusion that

petitioner has not established a well-founded fear of persecution. See Nagoulko v.

INS, 333 F.3d 1012, 1018 (9th Cir. 2003) (“[T]he IJ and the BIA are entitled to

rely on all relevant evidence in the record, including a State Department report, in

considering whether the petitioner has demonstrated there is good reason to fear

future persecution.”). Therefore, his asylum claim fails.

      Because Sandova-Grijalva failed to establish eligibility for asylum, he

necessarily fails to meet the more stringent standard for withholding of removal.

See Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006).


                                                                                08-71103
        Additionally, substantial evidence supports the BIA’s finding that Sandova-

Grijalva failed to show it is more likely than not he will be tortured if returned to

Guatemala. See Arteaga v. Mukasey, 511 F.3d 940, 948-49 (9th Cir. 2007).

Accordingly, his CAT claim fails.

        Finally, because Sandova-Grijalva did not exhaust his due process claim,

this court lacks jurisdiction to review it. See Barron v. Ashcroft, 358 F.3d 674,

677-78 (9th Cir. 2004) (alleged error of lack of opportunity to present case was

procedural in nature and required to be exhausted).

              PETITION FOR REVIEW DENIED in part; DISMISSED in

part.




                                                                                 08-71103
