FILED

NOT FOR PUBLICATION

APR 8 2022

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

EFRAIN DIAZ-PONCE, No. 21-70527

Petitioner, Agency No. A206-407-373

v.

MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted April 6, 2022** Pasadena, California

Before: SCHROEDER and GRABER, Circuit Judges, and McNAMEE,*** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Stephen M. McNamee, United States District Judge for the District of Arizona, sitting by designation. Efrain Diaz-Ponce, a citizen of Honduras, petitions for review of the Board

of Immigration Appeals’ (BIA) decision to affirm the Immigration Judge’s (IJ)

denial of his applications for adjustment of status, asylum, withholding of removal,

and protection under the Convention Against Torture (CAT).

Diaz-Ponce argues that the BIA erred by affirming the IJ’s adverse

credibility finding. The IJ based its finding on several inconsistent statements

Diaz-Ponce made about his cousin’s kidnaping. Although the police report in the

record said that his cousin was kidnaped in 2016, Diaz-Ponce’s 2014 declaration

said the kidnaping occurred in 2009, and Diaz-Ponce testified at his hearing that

the kidnaping was in 2018. As the IJ explained, the alleged kidnaping was central

to Diaz-Ponce’s argument that he should remain in the United States because he

feared being kidnaped in Honduras. The IJ therefore supported the adverse

credibility finding with cogent reasons and specific references to critical

inconsistencies in the record. See Shresthsa v. Holder, 590 F.3d 1034, 1044 (9th

Cir. 2010).

Diaz-Ponce also contends that the BIA should have found him eligible for

protection under CAT. He argues that he was tortured when he was 10 years old

and MS-13 gang members attempted to recruit him by threatening harm to his

grandparents. He testified the gang members also robbed him at knife point. Even

2 if these threats from private actors could amount to torture, they were not made

with the consent or acquiescence of a public official, as required for CAT

protection. See Duran-Rodriguez v. Barr, 918 F.3d 1025, 1029-30 (9th Cir. 2019).

Diaz-Ponce maintains that his cousin’s kidnaping is a changed circumstance

that excuses his failure to meet the one-year deadline to file for asylum. He did not

raise this argument in the administrative proceedings below, so we cannot consider

it for the first time on this appeal. See Barron v. Ashcroft, 358 F.3d 674, 677-78

(9th Cir. 2004); 8 U.S.C. § 1252(d)(1). We do not have jurisdiction to review the

IJ’s finding that he committed a “particularly serious crime.” See Anaya-Ortiz v.

Holder, 594 F.3d 673, 676 (9th Cir. 2010); see also 8 U.S.C. § 1252(a)(2)(B)(ii).

We also lack jurisdiction to review the denial of an 8 U.S.C. § 1182(h) waiver. 8

U.S.C. § 1252(a)(2)(B)(i).

The temporary stay of removal remains in effect until the mandate issues.

The motion for stay of removal is otherwise denied.

The petition is DENIED IN PART AND DISMISSED IN PART.

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