Oscar Anduray-Sagastume v. Eric H. Holder Jr. ( 2012 )

FILED
NOT FOR PUBLICATION APR 23 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
OSCAR ISMELDO ANDURAY- No. 08-75174
SAGASTUME,
Agency No. A072-509-660
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 17, 2012 **
Before: LEAVY, PAEZ, and BEA, Circuit Judges.
Oscar Ismeldo Anduray-Sagastume, 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
*
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).
application for asylum, withholding of removal, relief under the Convention
Against Torture (“CAT”), and cancellation of removal. Our jurisdiction is
governed by 8 U.S.C. § 1252. We review for substantial evidence factual findings.
Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006). We deny in part and
dismiss in part the petition for review.
Substantial evidence supports the BIA’s finding that Anduray-Sagastume
did not suffer past persecution based on his experiences with the Guatemalan
military or with the civil patrol. See Pedro-Mateo v. INS, 224 F.3d 1147, 1151
(9th Cir. 2000) (without evidence of a discriminatory purpose, forced conscription
into the military is not persecution on account of a protected ground); Molina-
Estrada v. INS, 293 F.3d 1089, 1094-95 (9th Cir. 2002) (no evidence persecution
was motivated by a protected ground). Substantial evidence also supports the
BIA’s finding that Anduray-Sagastume did not establish he suffered past
persecution through the threats and beating he suffered as a union leader because
he failed to demonstrate the government was unable or unwilling to control his
attackers. See Castro-Perez v. Gonzales, 409 F.3d 1069, 1072 (9th Cir. 2005).
Further, the record does not compel the conclusion that Anduray-Sagastume has a
well-founded fear of future persecution if he returns to Guatemala. See Nagoulko
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v. INS, 333 F.3d 1012, 1018 (9th Cir. 2003). Accordingly, Anduray-Sagastume’s
asylum claim fails.
Because Anduray failed to meet the lower burden of proof for asylum, it
follows that he has not met the higher standard for withholding of removal. See
Zehatye, 453 F.3d at 1190.
In addition, substantial evidence supports the BIA’s denial of CAT relief
because Anduray-Sagastume failed to establish that it is more likely than not he
will be tortured by or with the acquiescence of the government of Guatemala. See
Silaya v. Mukasey, 524 F.3d 1066, 1073 (9th Cir. 2008).
Finally, we lack jurisdiction to review the agency’s discretionary
determination that Anduray-Sagastume failed to demonstrate exceptional and
extremely unusual hardship to a qualifying relative in support of his application for
cancellation of removal. See Martinez-Rosas v. Gonzales, 424 F.3d 926, 929-30
(9th Cir. 2005).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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