Farzad Baktash v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 26, 2020
• Docket: 17-71150
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 26 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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,

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

2 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,”

3 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.

4 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.