Victor Valiente Calderon v. Eric H. Holder Jr.

MEMORANDUM

Victor Hugo Valiente Calderon, 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. Our jurisdiction is governed by 8 U.S.C. § 1252 . We review for substantial evidence, Molina-Estrada v. INS, 293 F.3d 1089, 1093 (9th Cir.2002), and we deny in part and dismiss in part the petition for review.

We reject Valiente Calderon’s contention that the agency erred in finding no past persecution because he had not been physically harmed, because this was not the basis for the agency’s past persecution finding. Valiente Calderon’s claim that he was persecuted on account of a particular social group — namely, his family — fails because he faded to exhaust this contention before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004). With respect to future fear, we reject Valiente Calderon’s contention that the agency erred in failing to apply the rebuttable presumption that his life or freedom would be threatened, because Valiente Calderon did not establish past persecution. See 8 C.F.R. § 1208.16 (b)(1).…