Juan Vasquez Pena v. Jefferson Sessions

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 21, 2018
• Docket: 10-70395
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 21 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JUAN LUIS VASQUEZ PENA and No. 10-70395 FERNANDO RIGOBERTO VASQUEZ PENA, Agency Nos. A096-360-117 A096-360-163 Petitioners, A097-351-683 A097-351-684 v. A097-351-685

JEFFERSON B. SESSIONS III, Attorney General, MEMORANDUM*

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted August 10, 2017 Pasadena, California

Before: CALLAHAN and OWENS, Circuit Judges, and GILLIAM,** District Judge.

Brothers Juan Luis Vasquez Pena and Fernando Rigoberto Vasquez Pena

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Haywood S. Gilliam, Jr., United States District Judge for the Northern District of California, sitting by designation. (collectively, “Petitioners”)1 petition for review of the Board of Immigration

Appeals’s (“BIA”) denial of their applications for asylum and withholding of

removal. Petitioners argue that the BIA erred in two respects: first, by denying

Petitioners’ asylum claims because Petitioners failed to show “extraordinary

circumstances” that excused their untimely applications; and second, by denying

Petitioners’ claims for withholding of removal. We have jurisdiction under 8

U.S.C. § 1252, and DENY the petition.

1. Substantial evidence supports the BIA’s finding that Petitioners failed to

show “extraordinary circumstances” that would excuse their untimely asylum

applications under the statutory one-year filing deadline. Al Ramahi v. Holder, 725

F.3d 1133, 1134-35 (9th Cir. 2013); 8 U.S.C. §§ 1158(a)(2)(B), (D). Petitioners

identify as extraordinary circumstances their “lack of financial resources” and

inability to speak English. This court has previously held that a lack of English-

language proficiency is not an extraordinary circumstance. See Toj-Culpatan v.

Holder, 612 F.3d 1088, 1091 (9th Cir. 2010). In addition, an individual’s financial

inability to retain legal counsel is not an “extraordinary circumstance” where “the

petitioners could have filed asylum applications themselves, sought pro bono

counsel or other assistance, or contacted immigration authorities.” Al Ramahi, 725

1 Petitioners clarified at oral argument that the claims of Luis Rigoberto Vasquez, Norma Patricia de Vasquez, and Luis A. Vasquez Barrientos are no longer before this court.

2 10-70395 F.3d at 1139. The record supports that Petitioners could have taken any of those

steps, but failed to do so.

2. “To qualify for withholding of removal, an alien must demonstrate that it

is more likely than not that he would be subject to persecution” on the basis of

race, religion, nationality, membership in a particular social group, or political

opinion. Al-Harbi v. I.N.S., 242 F.3d 882, 888 (9th Cir. 2001) (internal quotations

and citations omitted); 8 U.S.C. § 1231(b)(3). Petitioners fail to make that

showing. There is substantial evidence to support the BIA’s finding that

Petitioners did not face past persecution because the Guatemalan government was

not “unable or unwilling” to control Petitioners’ alleged persecutors. See Afriyie v.

Holder, 613 F.3d 924, 930-32 (9th Cir. 2010); Madrigal v. Holder, 716 F.3d 499,

506 (9th Cir. 2013).2 The BIA found that the Guatemalan government (1) arrested

a suspect connected to the events giving rise to Petitioners’ alleged fears; (2)

assigned a police detail for Petitioners’ protection while Petitioners resided in

Guatemala; and (3) placed Petitioners in a witness protection program when they

felt unsafe so that they could live in the United States. The BIA also noted that

Petitioners’ family members “continue to reside in the same community in

Guatemala, and have not received any threats or experienced harm” in ten years.

2 Because the court finds that substantial evidence supports the BIA’s finding that Petitioners were not subject to past persecution, the court need not determine whether Petitioners allege a cognizable social group. See Barajas-Romero v. Lynch, 846 F.3d 351, 357 (9th Cir. 2017).

3 10-70395 The record does not compel a conclusion contrary to that reached by the BIA. See

Rizk v. Holder, 629 F.3d 1083, 1087 (9th Cir. 2011). To the extent that Petitioners

now argue that they independently fear future persecution, Petitioners waived that

argument by failing to raise it before the BIA. See Barron v. Ashcroft, 358 F.3d

674, 678 (9th Cir. 2004).

DENIED.

4 10-70395