                                                                           FILED
                             NOT FOR PUBLICATION                             JUN 28 2011

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




                             FOR THE NINTH CIRCUIT



MARILYN ALCANTARA MANICAD,                       No. 08-70017
a.k.a. Marilyn Cawaling Alcantara,
                                                 Agency No. A097-368-244
               Petitioner,

  v.                                             MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



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

                             Submitted June 15, 2011 **

Before:        CANBY, O’SCANNLAIN and FISHER, Circuit Judges.

       Marilyn Alcantara Manicad, a native and citizen of the Philippines,

petitions for review of the Board of Immigration Appeals’ order dismissing her

appeal from an immigration judge’s (“IJ”) decision denying her application for

          *
             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).
asylum, withholding of removal, and relief under the Convention Against Torture

(“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review de novo

questions of law and review for substantial evidence factual findings. See Husyev

v. Mukasey, 528 F.3d 1172, 1178. We deny the petition for review

      The record does not compel the conclusion that extraordinary circumstances

excused Manicad’s untimely asylum application. See 8 C.F.R. § 1208.4(a)(5).

Because Manicad has not established eligibility for asylum, she is not entitled to a

discretionary grant of relief. See Kalubi v. Ashcroft, 364 F.3d 1134, 1137 (9th Cir.

2004) (“Asylum is a two-step process, requiring the applicant first to establish his

eligibility for asylum . . . and second to show that he is entitled to asylum as a

matter of discretion”). Accordingly, her asylum claim fails.

      Substantial evidence supports the IJ’s finding that the threats Manicad

received do not rise to the level of persecution. See Lim v. INS, 224 F.3d 929, 936-

37 (9th Cir. 2000) (rejecting a claim of past persecution because the threats were

unfulfilled and were not so menacing as to cause “significant actual suffering or

harm”). Substantial evidence also supports the IJ’s finding that Manicad failed to

establish a clear probability of future persecution. See Nagoulko v. INS, 333 F.3d

1012, 1018 (9th Cir. 2003). In light of our conclusions, Manicad’s due process

contention regarding the REAL ID Act fails. See Lata v. INS, 204 F.3d 1241, 1246


                                            2
(9th Cir. 2000) (requiring prejudice for a petitioner to prevail on due process

claim). Accordingly, Manicad’s withholding of removal claim fails.

      Finally, substantial evidence supports the IJ’s denial of Manicad’s CAT

claim because she failed to show it is more likely than not that she will be tortured

at the instigation of, or with the acquiescence of the Philippine government. See

Silaya v. Mukasey, 524 F.3d 1066, 1073 (9th Cir. 2008). Manicad’s contention

that the IJ violated due process by failing to evaluate her CAT claim is belied by

the record.

       PETITION FOR REVIEW DENIED.




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