NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                       AUG 27 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

RAMON ANTONIO SAENZ MARTINEZ,                   No.    19-71075
AKA Ramon Antonio Saenz-Martinez,
                                                Agency No. A075-433-362
                Petitioner,

 v.                                             MEMORANDUM*

WILLIAM P. BARR, Attorney General,

                Respondent.

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

                              Submitted August 14, 2020**
                               San Francisco, California

Before: HAWKINS and CHRISTEN, Circuit Judges, and GRITZNER, *** District
Judge.

      Ramon Antonio Saenz Martinez, a native and citizen of Nicaragua, petitions

for review of the Board of Immigration Appeals’ order dismissing his appeal from


      *
             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 James E. Gritzner, United States District Judge for the
Southern District of Iowa, sitting by designation.
an Immigration Judge’s decision denying his application for withholding of

removal and relief under the Convention Against Torture. We review for

substantial evidence the agency’s factual findings. Wakkary v. Holder, 

, 1056 (9th Cir. 2009). We review de novo claims of due process violations in

immigration proceedings. Jiang v. Holder, 

, 738 (9th Cir. 2014). We

have jurisdiction under 8 U.S.C. § 1252(a), and we deny the petition.

      Substantial evidence supports the agency’s conclusion that the single beating

Saenz Martinez suffered in 1988 at the hands of Sandinista supporters, which did

not require medical treatment, and the five or six sporadic, unfulfilled threats he

experienced between 1988 and 2004 did not rise to the level of past persecution.

See Gu v. Gonzales, 

, 1020 (9th Cir. 2006).

      Substantial evidence also supports the agency’s conclusion that Saenz

Martinez failed to show it was more likely than not he would be persecuted in

Nicaragua on account of his political opinion. Saenz Martinez presented no

evidence that he was an anti-Sandinista activist and denied being affiliated with

any political party in Nicaragua. There was similarly no evidence that the

Sandinistas have a pattern of persecuting those who resist Sandinista recruitment

but are not activists. Saenz Martinez also failed to prove individualized risk where

he only experienced one beating twenty-nine years earlier followed by sporadic,

unfulfilled verbal threats; his ex-wife, three children, and two siblings currently



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reside safely and unharmed in Nicaragua; and his brother, who holds similar anti-

Sandinista views and was verbally threatened once in 2000, remains living in

Nicaragua and has not been attacked or harmed for opposition views. See Sinha v.

Holder, 

, 1022 (9th Cir. 2009).

      The BIA did not err in declining to consider Saenz Martinez’s disfavored

group of “those that oppose the Sandinistas,” which he articulated for the first time

on appeal before the BIA. See Honcharov v. Barr, 

, 1297 (9th Cir.

2019) (per curiam) (holding that the BIA may refuse to entertain arguments raised

for the first time on appeal); see also Matter of W-Y-C & H-O-B-, 27 I. & N. Dec.

189, 191 (BIA 2018) (“Where, as here, an applicant delineates a social group for

the first time on appeal, the Immigration Judge will not have had an opportunity to

make relevant factual findings, which we cannot do in the first instance on

appeal.”).

      Substantial evidence also supports the agency’s denial of Saenz Martinez’s

CAT claim because he failed to establish that it is was more likely than not, he will

be tortured by or with the acquiescence of the government in Nicaragua. See

Gonzalez-Caraveo v. Sessions, 

, 894 (9th Cir. 2018).

      Finally, we reject Saenz Martinez’s contention that the IJ violated his due

process rights by excluding an untimely filed exhibit because Saenz Martinez

failed to establish prejudice. See Lata v. I.N.S., 

, 1246 (9th Cir.



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2000).

         Saenz Martinez’s motion to stay removal (Docket Entry No. 1) is denied as

moot. The temporary stay of removal will expire upon issuance of the mandate.



PETITION FOR REVIEW DENIED.




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