Linnares Popp v. Holder

FILED
NOT FOR PUBLICATION JAN 08 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RUTH VITALIA LINARES POPP; et al., No. 05-77218
Petitioners, Agency Nos. A097-587-465
A097-587-467
v. A097-587-468
A097-587-469
ERIC H. HOLDER Jr., Attorney General, A097-587-466
Respondent.
MEMORANDUM *
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 8, 2009 **
San Francisco, California
***
Before: SCHROEDER and LUCERO and CALLAHAN, Circuit Judges.
Ruth Linares Popp (“Ruth”), Mauro Gregorio Bendezu (“Mauro”) and their
children (collectively “petitioners”) petition for review of final orders and
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Carlos F. Lucero, Circuit Judge for the Tenth Circuit,
sitting by designation.
decisions of the Board of Immigration Appeals (BIA) affirming a decision of an
immigration judge (IJ), denying their claims for asylum, withholding of removal,
and protection under the Convention Against Torture (CAT).1
Petitioners are citizens of Peru, although Ruth is also a citizen of Argentina.2
Petitioners allege that the Shining Path persecuted them. They allege that in order
to escape this persecution, in December of 2001, Ruth and two of the children went
to Argentina and stayed with Ruth’s sister. Mauro left Peru for the United States in
January, 2002. Ruth and the children returned to Peru in February or March of
2002, allegedly because of an Argentinian banking crisis. Ruth and the children
came to the United States in September, 2002. Mauro filed an application for
asylum, withholding of removability and protection under the CAT on September
11, 2003, one year and nine months after entering the U.S. Ruth and the children
all filed their applications on September 11, 2003, exactly one year after they
entered the United States.
The BIA found Petitioners credible, but determined that they had failed to
show past persecution or an objective basis for a fear of future persecution. In
1
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. 34(a)(2).
2
The parties are familiar with the facts of this case and we repeat them
here only as necessary.
2
addition, the BIA found that Mauro had filed his asylum application late and that
Ruth had firmly resettled in Argentina. On appeal, petitioners challenge each of
these findings.3
The BIA’s denial of asylum will be affirmed unless the petitioner shows that
“any reasonable adjudicator would be compelled to conclude to the contrary.”
Zehatye v. Gonzales, 453 F.3d 1182, 1185 (9th Cir. 2006) (internal quotation
marks and citation omitted). We find no compelling reason to contradict the BIA’s
determination that there was no past persecution because: (1) the alleged acts did
not demonstrate an animus against Mauro and Ruth individually; and (2) as
petitioners failed to report these incidents, the government could not provide them
protection.
Because petitioners have not established past persecution, there is no
presumption that they have a well-founded fear of future persecution. See 8 C.F.R.
3
An application for asylum is untimely if filed more than one year after
the alien’s arrival in the United States. 8 U.S.C. § 1158(a)(2)(B). This court lacks
jurisdiction to review the denial of an untimely asylum application except where
there are extraordinary circumstances that would excuse the delay. 8 U.S.C. §§
1158(a)(3) and 1158(a)(2)(D); see Husyev v. Mukasey, 528 F.3d 1172, 1181-82
(9th Cir. 2008). Because Mauro’s claim that he delayed seeking asylum based on
an unidentified person’s advice is not an extraordinary circumstance, his petition
for review of the denial of his asylum application is dismissed. However, we have
jurisdiction to review Mauro’s claim for withholding of removal and for relief
under CAT. See Husyev, 528 F.3d at 1182.
3
§ 1208.13(b)(1). In asserting a well-founded fear of future persecution, petitioners
rely primarily on their allegations of past persecution, which have already been
established as insufficient to compel a conclusion different from that reached by
the BIA. Further, the IJ found that the country conditions in Peru have changed,
such that the Shining Path’s threat is greatly diminished. Therefore, even if
petitioners’ fear of future persecution is subjectively reasonable, it is not
objectively compelling.4 Cordon-Garcia v. INS, 204 F.3d 985, 990 (9th Cir. 2000)
(noting the objective component is more demanding and “requires credible, direct,
and specific evidence”).
In addition, because petitioners fail to establish past persecution or a well-
founded fear of future persecution for asylum, they cannot meet the “clear
probability” standard required for withholding of removal. Al-Harbi v. INS, 242
F.3d 882, 888-89 (9th Cir. 2001). Petitioners also have not presented any evidence
that they would be tortured if they are returned to Peru, and therefore, are not
eligible for protection under the CAT. See Kamalthas v. INS, 251 F.3d 1279, 1282
(9th Cir. 2001) (for relief under the CAT, a petitioner must show a likelihood that
he will be tortured if returned to a country).
4
Because we find that petitioners’ persecution claims lack merit, and
because this finding is dispositive, we do not need to decide the question of
whether Ruth had firmly resettled in Argentina.
4
Mauro’s application for asylum is DISMISSED and the remainder of the
Petition for Review is DENIED.
5