Rene Flores Gomez v. ERIC H. HOLDER, Jr., Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RENE FLORES GOMEZ,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 12-74200
Agency No. A070-949-751
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.
Rene Flores Gomez, 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 decision denying his application for asylum and
withholding of removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We
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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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 the death threats
made against Flores Gomez during the Salvadoran civil war did not rise to the level
of persecution. See Lim v. INS, 224 F.3d 929, 936 (9th Cir. 2000) (record did not
compel finding threats against petitioner, including death threats, constituted past
persecution). Substantial evidence also supports the agency’s finding that Flores
Gomez failed to establish a well-founded fear of persecution by guerrillas or the
FMLN if he returns to El Salvador. See Nagoulko v. INS, 333 F.3d 1012, 1018
(9th Cir. 2003) (possibility of persecution was “too speculative”). We lack
jurisdiction to review the social-group and gang-related claims Flores Gomez
raises in his opening brief because he did not raise them to the agency. See Barron
v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). Thus, Flores Gomez’s asylum
claim fails.
Because Flores Gomez failed to meet the lower standard of proof for
asylum, his claim for withholding of removal necessarily fails. See Zehatye, 453
F.3d at 1190.
12-74200 2

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This dismissal is without prejudice to petitioner’s seeking prosecutorial
discretion or deferred action from the Department of Homeland Security. See
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.
12-74200 3

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