Miguel Raya-Rivas v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MIGUEL RAYA-RIVAS,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 12-73964
Agency No. A089-091-041
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 9, 2015**
Before: WALLACE, RAWLINSON, and IKUTA, Circuit Judges.
Miguel Raya-Rivas, a native and citizen of Mexico, petitions 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 Convention Against Torture
FILED
DEC 15 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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(“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for
substantial evidence the agency’s factual findings, Tamang v. Holder, 598 F.3d
1083, 1088 (9th Cir. 2010), and we review de novo due process claims, Zetino v.
Holder, 622 F.3d 1007, 1011-12 (9th Cir. 2010). We dismiss in part and deny in
part the petition for review.
We lack jurisdiction to consider Raya-Rivas’s contentions as to his cousin’s
alleged kidnapping because the IJ found this claim was not credible, and Raya-
Rivas did not challenge the IJ’s finding on appeal to the BIA. See Barron v.
Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004) (petitioner must exhaust claims in
proceedings below).
We reject Raya-Rivas’s due process contention that the agency did not
sufficiently address whether changed circumstances excused his untimely asylum
application. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error
to prevail on a due process claim). Thus, we deny the petition for review as to
asylum.
Raya-Rivas testified that he did not experience past harm or threats in
Mexico. Substantial evidence supports the agency’s determination that he failed to
establish it is more likely than not he would be persecuted on account of a
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protected ground. See Zetino, 622 F.3d at 1016; Nagoulko v. INS, 333 F.3d 1012,
1018 (9th Cir. 2003) (possibility of future persecution “too speculative”). Thus,
Raya-Rivas’s withholding of removal claim fails. See Zetino, 622 F.3d at 1016.
Finally, substantial evidence supports the agency’s denial of Raya-Rivas’s
CAT claim because he failed to establish it is more likely than not he would be
tortured by or with the consent or acquiescence of the government if returned to
Mexico. See Alphonsus v. Holder, 705 F.3d 1031, 1049-50 (9th Cir. 2013).
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
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