Lapuste v. Holder

FILED
NOT FOR PUBLICATION SEP 16 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GHEORGHE LAPUSTE; MARIA No. 07-73834
MANUELA BOGDANESCU,
Agency Nos. A072-398-516
Petitioners, A072-403-996
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 14, 2011 **
San Francisco, California
Before: THOMAS and N.R. SMITH, Circuit Judges, and OLIVER, Chief District
Judge.***
*
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).
***
The Honorable Solomon Oliver, Jr., Chief District Judge for the U.S.
District Court for Northern Ohio, Cleveland, sitting by designation.
Gheorghe Lapuste and Maria Bogdanescu, natives and citizens of Romania,
petition for review of a decision by the Board of Immigration Appeals (“BIA”)
denying their request for humanitarian asylum. We deny the petition for review.
Because the parties are familiar with the history of the case, we need not recount it
here.
Humanitarian asylum may be granted where a petitioner has suffered
“atrocious forms of persecution,” Kebede v. Ashcroft, 366 F.3d 808, 812 (9th Cir.
2004) (citation and internal quotation marks omitted); Matter of Chen, 20 I. & N.
Dec. 16, 19 (BIA 1989), but “has been reserved for rare situations . . . where the
alien establishes that, regardless of any threat of future persecution, the
circumstances surrounding the past persecution were so unusual and severe that he
is unable to return to his home country,” Vongsakdy v. INS, 171 F.3d 1203, 1205
(9th Cir. 1999).
The BIA concluded that, although Lapuste had suffered persecution, his
experiences were not “comparable in severity” to those in Vongsakdy and Chen. It
concluded that his experiences were more like Marcu v. INS, 147 F.3d 1078 (9th
Cir. 1998), in which we denied relief to a Romanian applicant (like Lapuste) who
was denounced as an “enemy of the people,” detained, interrogated, and beaten by
police on multiple occasions. Id. at 1080.
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A review of the administrative record does not compel the conclusion that
the BIA erred in its analysis. The BIA compared Lapuste’s mistreatment to that in
Chen, as it must. Lopez-Galarza v. INS, 99 F.3d 954, 963 (9th Cir. 1996).
Substantial evidence supports the BIA’s observations that Lapuste provided
varying testimony about his injuries and the medical assistance he sought, as well
as that, upon obtaining a truck driving license, he did not pursue work as a driver.
The BIA properly applied circuit case law in reviewing Lapuste’s claim, and its
discussion appears sufficient for purposes of judicial review. See Marcu, 147 F.3d
at 1082 (“Although we require more than a mere comment from the BIA, all that is
necessary is a decision that sets out terms sufficient to enable us as a reviewing
court to see that the Board has heard, considered, and decided.” (citation and
internal quotation marks omitted)).
Lapuste also requests a remand, contending that the BIA did not permit
additional argument or briefing prior to issuing its decision. However, the BIA did
issue a new briefing schedule on remand, which it mailed to Lapuste’s last known
address. Further, Lapuste offers no new evidence or argument that indicates the
BIA’s conclusions would have been altered. Therefore, even assuming that there
was some deficiency in the process, he has failed to establish prejudice. See Lata
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v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (a showing of prejudice is required to
prevail on a due process challenge).
PETITION DENIED.
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