Ascencio-Pando v. Holder , 400 F. App'x 237 ( 2010 )

FILED
NOT FOR PUBLICATION OCT 21 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOSE ANDRES ) No. 06-73224
ASCENCIO-PANDO, )
) Agency No. A073-758-453
Petitioner, )
) MEMORANDUM *
v. )
)
ERIC H. HOLDER Jr., Attorney )
General, )
)
Respondent. )
)
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 5, 2010 **
San Francisco, California
Before: FERNANDEZ and SILVERMAN, Circuit Judges, and DUFFY,***
District Judge.
Jose Andres Ascencio-Pando, a native and citizen of Peru, petitions for
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
***
The Honorable Kevin Thomas Duffy, United States District Judge for the
Southern District of New York, sitting by designation.
review of the Board of Immigration Appeals’ denial of his application for asylum.
We deny the petition.
The BIA’s determination that an alien is not eligible for asylum must be
upheld if “‘supported by reasonable, substantial, and probative evidence on the
record considered as a whole.’” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.
Ct. 812, 815, 117 L. Ed. 2d 38 (1992). “It can be reversed only if the evidence
presented . . . was such that a reasonable factfinder would have to conclude that the
requisite fear of persecution existed.” Id.; see also Farah v. Ashcroft, 348 F.3d
1153, 1156 (9th Cir. 2003). When an alien seeks to overturn the BIA’s adverse
determination, “he must show that the evidence he presented was so compelling
that no reasonable factfinder could fail to find the requisite fear of persecution.”
Elias-Zacarias, 502 U.S. at 483–84, 112 S. Ct. at 817. When an asylum claim is
involved, an alien must show either past persecution or a well-founded fear of
future persecution that is “subjectively genuine and objectively reasonable.”
Fisher v. INS, 79 F.3d 955, 960 (9th Cir. 1996) (en banc); see also Gu v. Gonzales,
454 F.3d 1014, 1019 (9th Cir. 2006).
Ascencio cannot meet his heavy burden. The evidence supports the
conclusion that he did not show that he suffered past persecution on account of a
political opinion. See Yan Xia Zhu v. Mukasey, 537 F.3d 1034, 1043 (9th Cir.
2
2008). He suggests that he was persecuted for exposing official corruption,1 but
the evidence does not compel a conclusion that he did expose corruption, much
less that he was persecuted for doing so. See Molina-Morales v. INS, 237 F.3d
1048, 1051–52 (9th Cir. 2001); see also Kozulin v. INS, 218 F.3d 1112, 1117 (9th
Cir. 2000). Moreover, he did not present evidence that compelled a finding of an
objectively reasonable fear of future persecution. Rather, his return to Peru ten
years after the incident in question resulted in no harm and he was actually given a
friendly reception. That makes it even less likely that he will now be persecuted.
See Belayneh v. INS, 213 F.3d 488, 491 (9th Cir. 2000). Finally, the absence of
past persecution renders the humanitarian exception inapplicable, and if some
persecution did occur, the evidence does not compel a finding that it was so
atrocious that asylum must be granted. See id.; Kumar v. INS, 204 F.3d 931,
934–35 (9th Cir. 2000); cf. Matter of Chen, 20 I. & N. Dec. 16, 19–20 (BIA 1989).
Petition DENIED.
1
See Fedunyak v. Gonzales, 477 F.3d 1126, 1129 (9th Cir. 2007); Grava v.
INS, 205 F.3d 1177, 1181–82 (9th Cir. 2000).
3