                                                                             FILED
                              NOT FOR PUBLICATION                             JUN 26 2014

                                                                          MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                              FOR THE NINTH CIRCUIT


EDGAR MARTINEZ,                                    No. 12-72743

                Petitioner,                        Agency No. A094-314-637

  v.
                                                   MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

                Respondent.


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

                               Submitted June 25, 2014**

Before:        HAWKINS, TALLMAN, and NGUYEN, Circuit Judges.

          Edgar Martinez, a native and citizen of El Salvador, petitions pro se for

review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal

from an immigration judge’s decision denying his application for asylum,

withholding of removal, and protection under the Convention Against Torture

          *
             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). Petitioner’s request for oral
argument is denied.
(“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for

substantial evidence the agency’s factual findings, and de novo claims of due

process violations. Singh v. Holder, 638 F.3d 1264, 1268-69 (9th Cir. 2011). We

deny in part and dismiss in part the petition for review.

         Our review is limited to the administrative record and thus we do not

consider evidence included in the opening brief that was not part of the record

before the agency. See Fisher v. INS, 79 F.3d 955, 963-64 (9th Cir. 1996) (en

banc).

         The record does not compel the conclusion that Martinez established

extraordinary circumstances to excuse his untimely filed asylum application. See 8

C.F.R § 1208.4(a)(5); Dhital v. Mukasey, 532 F.3d 1044, 1049-50 (9th Cir. 2008).

Accordingly, his asylum claim fails.

         Substantial evidence supports the BIA’s finding that Martinez failed to

establish that the harm he suffered in El Salvador from the El Diablo group had a

nexus to a protected ground. See Navas v. INS, 217 F.3d 646, 656 (9th Cir. 2000).

Thus, Martinez is not entitled to a presumption of future persecution. See Molina-

Estrada v. INS, 293 F.3d 1089, 1096 (9th Cir. 2002). Further, substantial evidence

supports the agency’s finding that Martinez failed to demonstrate it is more likely

than not he will be persecuted now in El Salvador, more than twenty years after he


                                            2                                      12-72743
left. See Nagoulko v. INS, 333 F.3d 1012, 1018 (9th Cir. 2003) (possibility of

future persecution too speculative). We reject Martinez’s contention that the

agency based its decision on evidence that was not in the record. Thus, Martinez’s

withholding of removal claim fails.

      Substantial evidence also supports the agency’s denial of CAT relief because

Martinez failed to establish that it is more likely than not he will be tortured by or

with the consent or acquiescence of a government official if he returns to El

Salvador. See Zehatye v. Gonzales, 453 F.3d 1182, 1188 (9th Cir. 2006).

      Finally, we lack jurisdiction to consider Martinez’s due process claim that

the translation at his immigration hearing was inadequate, because he did not

exhaust this contention before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678

(9th Cir. 2004) (court lacks jurisdiction to consider issues that have not been

administratively exhausted).

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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