Farzad Baktash v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 26 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FARZAD BAKTASH, No. 17-71150
Petitioner, Agency No. A089-725-763
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
SOURI MAZLOUM; et al., No. 17-71151
Petitioners, Agency Nos. A089-796-691
A089-796-692
v. A026-512-672
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 11, 2020
Pasadena, California
Before: BERZON, R. NELSON, and LEE, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Petitioners Farzad Baktash, Souri Mazloum, et al., natives of Iran and
citizens of the Netherlands, seek review of the Board of Immigration Appeals’
(“BIA”) order dismissing their appeal from an Immigration Judge’s denial of
asylum, withholding of removal, and relief under the Convention Against Torture
(“CAT”). We have jurisdiction under 8 U.S.C. § 1252(a) and we deny the
petitions for review.
Because the BIA expressed no disagreement with any part of the IJ’s
decision, but instead cited In re Burbano, 20 I. & N. Dec. 872, 874 (B.I.A. 1994),
“we review the IJ’s decision as if it were the decision of the BIA.” Figueroa v.
Mukasey, 543 F.3d 487, 491 (9th Cir. 2008). To reverse the IJ’s determination that
Petitioners were not eligible for asylum and withholding, this panel “must find that
the evidence not only supports that conclusion, but compels it.” Sangha v. INS,
103 F.3d 1482, 1487 (9th Cir. 1997) (quoting INS v. Elias-Zacarias, 502 U.S. 478,
481 n.1 (1992)).
To demonstrate past persecution, Petitioners have “the burden of
establishing that (1) [the] treatment [rose] to the level of persecution; (2) the
persecution was on account of one or more protected grounds; and (3) the
persecution was committed by the government, or by forces that the government
was unable or unwilling to control.” Bringas-Rodriguez v. Sessions, 850 F.3d
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1051, 1062 (9th Cir. 2017) (en banc) (quoting Baghdasaryan v. Holder, 592 F.3d
1018, 1023 (9th Cir. 2010)).
Here, substantial evidence supports the agency’s conclusion that Petitioners
have not shown that the “persecution was committed by the government, or by
forces that the government was unable or unwilling to control” for purposes of
asylum. Id. Petitioners have not shown that the state-licensed nightclub security
guards who attacked and beat them were state actors. Furthermore, while
Petitioners’ allegations that the police officers failed to adequately investigate the
nightclub assault right after it occurred are disturbing, the record shows that Dutch
authorities thereafter took proactive steps to help Petitioners. Police officers
interviewed Petitioners at the police station, showed them photographs to help
identify the perpetrators, and told Petitioners they would investigate. Petitioners’
case was then filed in court by a public prosecutor and litigated for almost four
years until the Dutch court reached its decision to dismiss the case. Petitioners’
contention that the police officers’ lack of diligence in investigating the case
“ultimately resulted in the case being dismissed in Court” is unsubstantiated.
Absent more evidence, dismissal of their case after an investigation does not prove
that the Dutch government was unable or unwilling to help Petitioners.
Additionally, the agency reasonably found that “the length of time it took for the
criminal case to be resolved may actually undercut the [Baktash family’s] claim,”
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as the case was not rushed or closed prematurely. Thus, on this record, a
reasonable adjudicator would not be compelled to conclude that Petitioners met
their burden of establishing past persecution.
Substantial evidence also supports the IJ’s determination that Petitioners
were unable to meet their burden of demonstrating a “well-founded fear of [future]
persecution on account of race, religion, nationality, membership in a particular
social group, or political opinion.” Elias-Zacarias, 502 U.S. at 481 (quoting 8
U.S.C. § 1101(a)(42)(A)); 8 C.F.R. § 1208.13(b)(2). Because the record does not
compel a finding that Petitioners have a reasonable fear of persecution by either the
Dutch government or forces that it is unwilling or unable to control, Petitioners are
ineligible for asylum. Avetova-Elisseva v. INS, 213 F.3d 1192, 1196 (9th Cir.
2000); see also Nahrvani v. Gonzalez, 399 F.3d 1148, 1154 (9th Cir. 2005)
(finding speculative claim of future persecution insufficient to establish well-
founded fear).
Because Petitioners have not met their burden for asylum eligibility, they
likewise fail to meet the higher standard of proof for withholding of removal.
Fisher v. INS, 79 F.3d 955, 961 (9th Cir. 1996) (en banc). Furthermore, because
Petitioners did not contest the IJ’s denial of their application for CAT relief before
the BIA, and did not challenge the IJ’s denial in their opening brief before this
Court, their CAT claim is both unexhausted, see 8 U.S.C. § 1252(d)(1); Barron v.
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Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004), and waived, see Martinez-Serrano
v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996).
PETITION FOR REVIEW DENIED.
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