Lesinaivalu v. Gonzales

132 F. App'x 112
Court of Appeals for the Ninth Circuit·Decided April 27, 2005·No. No. 03-74269·Published

Opinion

MEMORANDUM**

Atunisa Lesinaivalu, a citizen of Fiji and an ethnic Fijian, appeals from a Board of Immigration Appeals order affirming the denial of his application for asylum, withholding of deportation and Convention Against Torture relief. On appeal to the BIA, Lesinaivalu also claimed that his right to due process was violated because he was not provided with an adequate and competent interpreter during his removal hearing. The BIA concluded that Lesinaivalu was not eligible for relief because he failed to establish past persecution or a well-founded fear of future persecution on account of political opinionu — Ihe- BIA denied his due process claim because Lesinaivalu failed to indicate either errors in the translation or ways in which a better translation would have made a difference in the outcome of the hearing.

Lesinaivalu timely filed his petition for review, and we have jurisdiction to review a final order of removal under 8 U.S.C. § 1252(a)(1). Because the BIA issued a reasoned opinion after conducting its own review of the record, we review only the BIA’s opinion. Sael v. Ashcroft, 386 F.3d 922, 924 (9th Cir.2004). We deny the petition.

[114] We review for substantial evidence the BIA’s decisions regarding Lesinaivalu’s eligibility for asylum, withholding of removal, and relief under CAT. Kaiser v. Ashcroft, 390 F.3d 653, 657 (9th Cir.2004) (asylum eligibility); Berroteran-Melendez v. INS, 955 F.2d 1251, 1255 (9th Cir.1992) (withholding of removal); Bellout v. Ashcroft, 363 F.3d 975, 979 (9th Cir.2004) (relief under CAT). We review de novo Lesinaivalu’s due process claim. Khup v. Ashcroft, 376 F.3d 898, 902 (9th Cir.2004). Because neither the IJ nor the BIA made an express negative credibility finding, we accept Lesinaivalu’s testimony as true. Lim v. INS, 224 F.3d 929, 933 (9th Cir.2000).

I. Asylum, Withholding of Removal, and CAT Relief

For his asylum claim, Lesinaivalu was required to establish either past persecution or a well-founded fear of future persecution on account of a protected ground. See 8 C.F.R. § 1208.13(b); Singh v. Ashcroft, 362 F.3d 1164, 1170 (9th Cir.2004). Lesinaivalu’s testimony makes clear that he did not experience past persecution, and there is insufficient evidence to compel the conclusion that his fear of future persecution is objectively reasonable. Garcia-Martinez v. Ashcroft, 371 F.3d 1066, 1073 (9th Cir.2004) (“To establish a well-founded fear of [future] persecution, an applicant must show that her fear is ‘both subjectively genuine and objectively reasonable.’ ”) (quoting Navas v. INS, 217 F.3d 646, 656 n. 11 (9th Cir.2000)).

In support of his past persecution claim, Lesinaivalu offered nothing but a bare assertion that he was persecuted. In his testimony, Lesinaivalu never described a personal experience of threats or other form of harm that could qualify as persecution. Indeed, Lesinaivalu testified that he fears returning to Fiji because of the coup that took place in May 2000 and the ensuing violent conflict, events that occurred after Lesinaivalu left Fiji in 1999. In other words, this is not a case in which we must determine whether the applicant’s experience rises to the level of past persecution; this is a case in which the applicant has failed to describe a single past experience that we can evaluate.

Nor has Lesinaivalu established that there is a pattern or practice of persecution against any groups of which Lesinaivalu is a member or that he is a member of a disfavored group who faces a heightened risk of being singled out. Lesinaivalu argues that he is at risk of persecution because he was a member of the Fijian Association Party (“FAP”), because he is an ethnic-Fijian who supports racial unity, and because he is a member of the military reserves.

Other than Lesinaivalu’s bare assertion, there is no evidence of a pattern or practice of persecution against members of the FAP. While there is some evidence indicating that governmental officials were taken hostage when the May 2000 coup took place and that the hostage group included FAP officials, the coup was defeated and an interim government was installed in July 2000. Although the democratically elected government was not reinstated, there is no evidence that the interim government has been persecuting or even disfavoring FAP members. Rather, Lesinaivalu’s own testimony and the 2001 Fiji Country Report indicate that the interim government prosecuted many of those responsible for the coup.

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Lesinaivalu v. Gonzales, 132 F. App'x 112 (9th Cir. 2005).

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