                                                                           FILED
                             NOT FOR PUBLICATION                            JAN 20 2010

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




                             FOR THE NINTH CIRCUIT



 ALEJANDRO RAYMONDO-DIEGO,                       No. 07-72625

               Petitioner,                       Agency No. A096-194-955

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

               Respondent.



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

                             Submitted January 11, 2010 **

Before:        BEEZER, TROTT, and BYBEE, Circuit Judges.

        Alejandro Raymondo-Diego, a native and citizen of Guatemala, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order summarily affirming

the immigration judge’s (“IJ’s”) decision denying his application for asylum,



          *
             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).

KAD/Research
withholding of removal, and protection under the Convention Against Torture

(“CAT”). We have jurisdiction pursuant to 8 U.S.C. § 1252. We review factual

findings for substantial evidence, Santos-Lemus v. Mukasey, 542 F.3d 738, 742

(9th Cir.2008), and we review due process claims de novo, Ram v. INS, 243 F.3d

510, 516 (9th Cir. 2001). We deny the petition for review.

       The IJ denied Raymondo-Diego’s asylum application as time barred, and

Raymondo-Diego does not challenge this finding.

       Substantial evidence supports the IJ’s denial of withholding of removal

because the difficulties Raymondo-Diego suffered in Guatemala did not rise to the

level of persecution, see Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir. 2003),

and the unharmed presence of Raymondo-Diego’s similarly situated family

members undermines his fear of future persecution, see Hakeem v. INS, 273 F.3d

812, 816-17 (9th Cir. 2001). Substantial evidence also supports the IJ’s finding

that Raymondo-Diego failed to establish a pattern or practice of persecution

against indigenous people in Guatemala. See Wakkary v. Holder, 558 F.3d 1049,

1060-62 (9th Cir. 2009).

       In is opening brief, Raymondo-Diego fails to challenge the IJ’s

determination that he did not establish eligibility for CAT. See Martinez-Serrano

v. INS, 94 F.3d 1256, 1259-60 (9th Cir.1996).


KAD/Research                             2                                     07-72625
       Finally, Raymondo-Diego’s due process challenge to the BIA’s summary

affirmance is foreclosed by Falcon Carriche v. Ashcroft, 350 F.3d 845, 848 (9th

Cir. 2003). And, his due process challenge that the IJ failed to analyze the country

reports is contradicted by the record. See Almaghzar v. Gonzales, 457 F.3d 915,

921-22 (9th Cir. 2006).

       PETITION FOR REVIEW DENIED.




KAD/Research                              3                                   07-72625
