JULIO PEDRO-SIMON, AKA Julio P. Simon v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JULIO PEDRO-SIMON, AKA Julio P.
Simon,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 13-72429
Agency No. A070-639-807
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 14, 2015**
Before: SILVERMAN, BYBEE, and WATFORD, Circuit Judges.
Julio Pedro-Simon, a native and citizen of Guatemala, petitions pro se 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
OCT 21 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. Zehatye v. Gonzales, 453 F.3d
1182, 1184-85 (9th Cir. 2006). We dismiss in part and deny in part the petition for
review.
We do not consider new evidence Pedro-Simon attached to his opening
brief. See Fisher v. INS, 79 F.3d 955, 963 (9th Cir. 1996) (en banc) (court’s review
is limited to the administrative record).
We lack jurisdiction to consider Pedro-Simon’s contentions regarding
asylum, removability, and the IJ’s alleged constitutional violations, because he
failed to raise them to the BIA. See Sola v. Holder, 720 F.3d 1134, 1135-36 (9th
Cir. 2013).
Substantial evidence supports the BIA’s conclusion that Pedro-Simon’s
experiences in Guatemala did not rise to the level of persecution. See Hoxha v.
Ashcroft, 319 F.3d 1179, 1182 (9th Cir. 2003) (unfulfilled threats constituted
harassment, not persecution). Substantial evidence also supports the BIA’s
determination that Pedro-Simon failed to demonstrate it is more likely than not that
he will be persecuted in Guatemala. See Nagoulko v. INS, 333 F.3d 1012, 1018
(9th Cir. 2003) (possibility of future persecution too speculative). We do not reach
Pedro-Simon’s contentions regarding the IJ’s particularly serious crime
13-72429 2

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determination, because the BIA did not rely on this ground in denying his
withholding of removal claim. See Santiago-Rodriguez v. Holder, 657 F.3d 820,
829 (9th Cir. 2011) (review limited to the grounds relied on by the BIA). Thus,
Pedro-Simon’s withholding of removal claim fails.
Substantial evidence also supports the BIA’s denial of Pedro-Simon’s CAT
claim because he failed to show it is more likely than not that he would be tortured
by or with the consent or acquiescence of the Guatemalan government. See Silaya
v. Mukasey, 524 F.3d 1066, 1073 (9th Cir. 2008). We reject Pedro-Simon’s
contention that the agency failed to properly consider record evidence. Thus, his
CAT claim fails.
Finally, according to respondent, Pedro-Simon was removed from the
United States on January 13, 2014. Thus, we deny his motion for stay of removal
as moot.
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
13-72429 3

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