                                                                           FILED
                             NOT FOR PUBLICATION                            FEB 24 2010

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




                              FOR THE NINTH CIRCUIT



 BAYARDO EDWINSIN PAVON                           No. 08-70452
 TEJADA,
                                                  Agency No. A095-292-070
               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 16, 2010 **

Before:        FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.

        Bayardo Edwinsin Pavon Tejada, a native and citizen of Honduras, petitions

for review of a Board of Immigration Appeals’ (“BIA”) order dismissing his

appeal from an immigration judge’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”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo

questions of law, Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir. 2008), except

to the extent that deference is owed to the BIA’s determination of the governing

statutes and regulations, Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004).

We review factual findings for substantial evidence, Santos-Lemus v. Mukasey,

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

for review.

       We reject Tejada’s claim that he is eligible for asylum and withholding of

removal on account of his anti-gang political opinion, or based on his membership

in a particular social group. See Barrios v. Holder, 581 F.3d 849, 855-56 (9th Cir.

2009); Santos-Lemus, 542 F.3d at 745-46. Accordingly, because Tejada failed to

show he was persecuted or fears persecution on account of a protected ground, we

deny the petition as to his asylum and withholding of removal claims. See Barrios,

581 F.3d at 856.

       Substantial evidence also supports the BIA’s denial of CAT relief because

Tejada did not establish a likelihood of torture by, at the instigation of, or with the

consent or acquiescence of the Honduran government. See Arteaga v. Mukasey,

511 F.3d 940, 948-49 (9th Cir. 2007).


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       We lack jurisdiction to consider Tejada’s due process claim because he

failed to exhaust it before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 677-78

(9th Cir. 2004).

       PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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