                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 17 2011

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




                            FOR THE NINTH CIRCUIT



JORGE ALBERTO CUBIAS-GOMEZ,                      No. 08-71949
AKA Jorge Alberto-Gomez Cubias,
                                                 Agency No. A044-806-888
              Petitioner,

  v.                                             MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



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

                      Argued and Submitted February 8, 2011
                               Pasadena, California

Before: REINHARDT, RAWLINSON, and N.R. SMITH, Circuit Judges.

       Jorge Cubias-Gomez petitions for review of a Board of Immigration Appeals

order finding him removable as an aggravated felon and thus ineligible for asylum,

and also denying his application for withholding of removal. We review the




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
aggravated felony determination de novo and the denial of withholding of removal

for substantial evidence, and we deny the petition.

      1. We agree with the BIA that the record of conviction establishes that

Cubias’s conviction under Cal. Vehicle Code § 10851(a) was a generic theft

offense within the meaning of the Immigration and Nationality Act. Section

10851(a) encompasses liability for both principals and accessories after the fact to

auto theft, and is therefore a divisible statute. United States v. Vidal, 504 F.3d

1072, 1086 (9th Cir. 2007) (en banc). Cubias was charged as a principal, however,

and Cubias signed a statement on his written plea form that read, “I agree that I did

the things that are stated in the charges that I am admitting.” The plea form

indicated that those “charges” included the specific count alleging a violation of

section 10851(a), and nothing in the record suggests the allegations in that count

were ever changed after the Complaint was filed. We therefore conclude that,

under the modified categorical approach, the record of conviction “confirms that

the plea ‘necessarily rested on the fact identifying the [offense] as generic.’” Vidal,

504 F.3d at 1086 (quoting Shepard v. United States, 544 U.S. 13, 21 (2005)).

      2. Substantial evidence supports the BIA’s determination that Cubias is not

entitled to withholding because he provided insufficient evidence to establish that

it is more likely than not that he would be persecuted on account of his political


                                           2
opinion concerning gangs. Wakkary v. Holder, 558 F.3d 1049, 1065 (9th Cir.

2009). Cubias’s testimony did not establish that he would be targeted for

persecution, and he presented no other evidence that he would face a high risk of

persecution. The record does not compel us to conclude that the requisite fear or

likelihood of persecution exists. Id. at 1060. We therefore affirm the BIA’s

determination as to this issue as well.

      3. Cubias does not challenge the BIA’s denial of relief under the

Convention Against Torture and of his due process claims, and therefore waives

these claims. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996).

      PETITION DENIED.




                                          3
