Estuardo Carrato Cuevas v. ERIC H. HOLDER, Jr., Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ESTUARDO CARRATO CUEVAS,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 12-73767
Agency No. A087-682-763
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 22, 2014**
Before: GOODWIN, CANBY, and CALLAHAN, Circuit Judges.
Estuardo Carrato Cuevas, a native and citizen of Guatemala, 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, protection under the Convention Against Torture (“CAT”), and voluntary
FILED
JUL 29 2014
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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departure. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for
substantial evidence the factual findings. Wakkary v. Holder, 558 F.3d 1049, 1056
(9th Cir. 2009). We deny in part and dismiss in part the petition for review.
Substantial evidence supports the agency’s finding that the anonymous
letters demanding money and threatening death that Carrato Cuevas’ family
received did not constitute persecution. See Nahrvani v. Gonzales, 399 F.3d 1148,
1153-54 (9th Cir. 2005); Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir. 2003)
(unfulfilled threats “constitute[d] harassment rather than persecution”). The BIA
did not rely on a lack of corroboration in making this finding.
Further, substantial evidence supports the agency’s finding that Carrato
Cuevas failed to establish it is more likely than not that he will be persecuted in
Guatemala considering his mother and siblings remain in Guatemala unharmed.
See Hakeem v. INS, 273 F.3d 812, 816 (9th Cir. 2001) (“[a]n applicant’s claim of
persecution upon return is weakened, even undercut, considering similarly-situated
family members continue to live in the country without incident”), superseded by
statute on other grounds as stated in Ramadan v. Gonzales, 479 F.3d 646, 650 (9th
Cir. 2007). We reject Carrato Cuevas’s contention that the BIA’s decision
contained significant errors of analysis. See Lata v. INS, 204 F.3d 1241, 1246 (9th
12-73767 2

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Cir. 2000) (requiring error to prevail on a due process claim). Thus, Carrato
Cuevas’s withholding of removal claim fails.
Substantial evidence supports the BIA’s denial of Carrato Cuevas’ CAT
claim because he failed to show it is more likely than not that he would be tortured
at the instigation of or with the consent or acquiescence of a member of the
Guatemalan government. See Wakkary v. Holder, 558 F.3d 1056, 1067-68 (9th
Cir. 2009).
Finally, with respect to voluntary departure, we do not address Carrato
Cuevas’s challenge to the IJ’s finding. See Hosseini v. Gonzales, 471 F.3d 953,
957 (9th Cir. 2006) (Where BIA conducts its own review of evidence and law
rather than adopting the IJ’s decision, this court’s “review is limited to the BIA’s
decision, except to the extent that the IJ’s opinion is expressly adopted.”) (internal
quotation marks omitted). We lack jurisdiction to review the BIA’s discretionary
denial of voluntary departure. See 8 U.S.C. § 1252(a)(2)(B)(i); see also Gil v.
Holder, 651 F.3d 1000, 1006 (9th Cir. 2011) (court lacks jurisdiction to review
discretionary denial of voluntary departure where no legal question was raised).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
12-73767 3

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