                                                                          FILED
                             NOT FOR PUBLICATION                           MAR 21 2011

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




                             FOR THE NINTH CIRCUIT



OSCAR ALEXANDRE MENDEZ-                          No. 09-73131
MARTINEZ,
                                                 Agency No. A099-666-997
               Petitioner,

  v.                                             MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



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

                             Submitted March 8, 2011 **

Before:        FARRIS, O’SCANNLAIN, and BYBEE, Circuit Judges.

       Oscar Alexandre Mendez-Martinez, a native and citizen of El Salvador,

petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order

dismissing his appeal from an immigration judge’s (“IJ”) decision denying his

application for asylum, withholding of removal, and protection under the

          *
             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).
Convention Against Torture (“CAT”). We have jurisdiction under 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 for substantial evidence factual findings.

Barrios v. Holder, 581 F.3d 849, 854 (9th Cir. 2009). We deny the petition for

review.

      Substantial evidence supports the agency’s determination that Mendez-

Martinez failed to demonstrate that he is eligible for asylum and withholding of

removal based on his membership in a particular social group. See id. at 855-56

(petitioner who resisted gang recruitment did not establish persecution on account

of a protected ground); Santos-Lemus v. Mukasey, 542 F.3d 738, 745-47 (9th

Cir. 2008). Accordingly, Mendez-Martinez’s asylum and withholding of removal

claims fail. See Barrios, 581 F.3d at 856.

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

Mendez-Martinez did not establish a likelihood of being tortured in El Salvador by

or at the instigation of or with the consent or acquiescence of a public official or

other person acting in an official capacity. See Santos-Lemus, 542 F.3d at 747-48.




                                           2                                     09-73131
Mendez-Martinez’s contention that the IJ applied the wrong legal standard

concerning his CAT claim is belied by the record.

      Finally, Mendez-Martinez’s claim that the BIA erred because it did not

comment on the arguments in his brief fails. See Najmabadi v. Holder, 597 F.3d

983, 990-91 (9th Cir. 2010); Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000)

(requiring error and prejudice to prevail on a due process claim).

      PETITION FOR REVIEW DENIED.




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