Jose Rene Guardado v. ERIC H. HOLDER, Jr., Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE RENE GUARDADO,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 12-70593
Agency No. A029-169-067
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 21, 2015**
Before: CANBY, GOULD, and N.R. SMITH, Circuit Judges.
Jose Rene Guardado, a native and citizen of El Salvador, petitions for review
of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s decision denying his application for withholding of removal
and protection under the Convention Against Torture (“CAT”). Our jurisdiction is
FILED
JAN 28 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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governed by 8 U.S.C. § 1252. We review for substantial evidence the agency’s
factual findings. Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006).
We deny in part and dismiss in part the petition for review.
Substantial evidence supports the BIA’s determination that Guardado did not
establish a probability of persecution on account of a protected ground from
anyone if returned to El Salvador. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th
Cir. 2010) (“[a]n alien’s desire to be free from harassment by criminals motivated
by theft or random violence by gang members bears no nexus to a protected
ground”); Molina-Estrada v. INS, 293 F.3d 1089, 1095-96 (9th Cir. 2002)
(insufficient evidence to establish likelihood of future persecution). We lack
jurisdiction to review Guardado’s imputed political opinion claim because he failed
to raise it to the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).
Thus, his withholding of removal claim fails.
Substantial evidence also supports the BIA’s denial of CAT relief because
Guardado failed to establish it is more likely than not he would be tortured at the
instigation of or with the acquiescence of the government if returned to El
Salvador. See Silaya v. Mukasey, 524 F.3d 1066, 1073 (9th Cir. 2008).
This dismissal is without prejudice to petitioner’s seeking prosecutorial
discretion or deferred action from the Department of Homeland Security. See
12-70593 2

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Reno v. American-Arab Anti-Discrimination Committee (AADC), 525 U.S. 471,
483-85 (1999) (stating that prosecutorial discretion by the agency can be granted at
any stage, including after the conclusion of judicial review).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
12-70593 3

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