Kim v. Holder , 383 F. App'x 693 ( 2010 )

FILED
NOT FOR PUBLICATION JUN 14 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MAGNOLIA SILVERIO KIM, No. 07-73311
Petitioner, Agency No. A099-578-353
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 25, 2010 **
Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.
Magnolia Silverio Kim, a native and citizen of the Philippines, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal
from an immigration judge’s decision denying her application for asylum,
*
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).
withholding of removal, and relief under the Convention Against Torture (“CAT”).
Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial
evidence, Nahrvani v. Gonzales, 399 F.3d 1148, 1151 (9th Cir. 2005), and we deny
in part and dismiss in part the petition for review.
We reject the government’s argument that we lack jurisdiction on the basis
that Kim was found to be removable based upon her prior criminal conviction. See
Bromfield v. Mukasey, 543 F.3d 1071, 1075-76 n.4 (9th Cir. 2008) (jurisdiction
exists where the agency has denied relief on the merits, notwithstanding
removability based upon an aggravated felony).
Kim does not raise any challenge to the agency’s determination that her
asylum application is time-barred. Accordingly, we deny the petition for review as
to Kim’s asylum claim.
Substantial evidence supports the agency’s finding that Kim did not
establish past persecution because she failed to show the sexual assaults she
suffered occurred on account of a protected ground. See Molina-Estrada v. INS,
293 F.3d 1089, 1094-95 (9th Cir. 2002). We lack jurisdiction to review Kim’s
contention that she is a member of a particular social group because she failed to
exhaust the issue before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 677-78
(9th Cir. 2004). Substantial evidence also supports the agency’s finding that Kim’s
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fear of future persecution is not objectively reasonable because she testified her
persecutor is now deceased. See Canales-Vargas v. Gonzales, 441 F.3d 739, 747
(9th Cir. 2006). Accordingly, Kim’s withholding of removal claim fails.
Substantial evidence also supports the agency’s finding that Kim cannot
show a likelihood of torture by or with the acquiescence of government officials if
returned to the Philippines, and therefore we deny the petition as to Kim’s CAT
claim. See Wakkary v. Holder, 558 F.3d 1049, 1067-68 (9th Cir. 2009).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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