DERIS HERRERA-MACHADO V. JEFFERSON SESSIONS, No. 15-73373 (9th Cir. 2017)
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FILED NOT FOR PUBLICATION MAR 15 2017 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT DERIS HERRERA-MACHADO, Petitioner, No. U.S. COURT OF APPEALS 15-73373 Agency No. A098-653-360 v. MEMORANDUM * JEFFERSON B. SESSIONS III, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted March 8, 2017** Before: LEAVY, W. FLETCHER, and OWENS, Circuit Judges. Deris Herrera-Machado, a native and citizen of Honduras, 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 and protection under the Convention Against Torture (“CAT”). We have * 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). jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the agency’s factual findings, Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir. 2009) and we deny the petition for review. Substantial evidence supports the agency’s conclusion that the harms Herrera-Machado suffered in Honduras as a gay man did not rise to the level of persecution. See Nagoulko v. INS, 333 F.3d 1012, 1016 (9th Cir. 2003) (petitioner who was teased, bothered, discriminated against, harassed, and never physically harmed failed to establish harm rising to the level of persecution). Thus, HerreraMachado was not entitled to a rebuttable presumption of future persecution. See Molina-Estrada v. INS, 293 F.3d 1089, 1096 (9th Cir. 2002). Herrera-Machado does not otherwise challenge the agency’s determination that he failed to establish it is more likely than not he would be persecuted if returned. Thus, we deny the petition for review as to Herrera-Machado’s withholding of removal claim. Substantial evidence supports the agency’s denial of CAT protection because Herrera-Machado failed to show it is more likely than not he would be tortured by or with the consent or acquiescence of the Honduran government. See Alphonsus v. Holder, 705 F.3d 1031, 1049 (9th Cir. 2013). PETITION FOR REVIEW DENIED. 2 15-73373
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