                                                                           FILED
                             NOT FOR PUBLICATION                            APR 14 2010

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




                             FOR THE NINTH CIRCUIT



CARLOS ERNESTO HERNANDEZ-                        No. 08-72146
AQUINO,
                                                 Agency No. A098-793-497
               Petitioner,

  v.                                             MEMORANDUM *

ERIC H. HOLDER Jr., Attorney General,

               Respondent.



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

                              Submitted April 5, 2010 **

Before:        RYMER, McKEOWN, and PAEZ, Circuit Judges.

       Carlos Ernesto Hernandez-Aquino, a native and citizen of El Salvador,

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

his appeal from an immigration judge’s (“IJ”) decision denying his 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 protection under the Convention Against

Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252. We review for

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

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

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

       Substantial evidence supports the agency’s determination that the threats

gang members made against Hernandez-Aquino did not constitute persecution.

See Lim v. INS, 224 F.3d 929, 936 (9th Cir. 2000). Substantial evidence also

supports the agency’s determination that Hernandez-Aquino failed to establish past

persecution or a well-founded fear of future persecution on account of an anti-gang

political opinion or membership in a particular social group. See Santos-Lemus,

542 F.3d at 745-47. Accordingly, his asylum and withholding of removal claims

fail. See id. at 748.

       Hernandez-Aquino’s CAT claim fails because he did not establish a

likelihood of torture by, at the instigation of, or with the consent or acquiescence of

the Guatemalan government. See Azanor v. Ashcroft, 364 F.3d 1013, 1019 (9th

Cir. 2004).

       Finally, Hernandez-Aquino’s due process challenge to the BIA’s summary

affirmance fails because the BIA adopted and affirmed the IJ’s decision in its


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entirety, citing Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994). See Abebe v.

Gonzales, 432 F.3d 1037, 1040 (9th Cir. 2005) (en banc) (stating that a Burbano

affirmance signifies that the BIA has conducted an independent review of the

record and has determined that its conclusions are the same as those articulated by

the IJ).

       PETITION FOR REVIEW DENIED.




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