Uribe v. Ashcroft

105 F. App'x 941

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 16, 2004
• Docket: No. 03-70606
• Status: Published

Opinion

MEMORANDUM

**

Edgar Ivan Jimenez Uribe, a native and citizen of Panama, petitions for review of the decision of the Board of Immigration Appeals (“BIA”) denying his application for asylum and withholding of removal.

Uribe testified that he was beaten by family members and raped by a neighbor on account of his homosexuality. He argues that the BIA abused its discretion in finding that he did not establish past persecution or a “well-founded fear” of persecution. We have held that sexual assault and beatings on account of homosexuality can qualify as persecution on account of membership in a particular social group. See Hernandez-Montiel v. INS, 225 F.3d 1084, 1093-94 (9th Cir.2000). However, Uribe did not establish that the government of Panama was the source of his persecution or that it was unable or unwilling to control his attackers specifically, or, more generally, those elements of society responsible for victimizing gay men. Cf. id. at 1097; Avetova-Elisseva v. INS, 213 F.3d 1192, 1196 (9th Cir.2000). Therefore, we conclude that the BIA did not abuse its discretion in denying Uribe’s petition for asylum.

We also conclude that Uribe does not meet the requirements for mandatory withholding of removal, INA § 241(b)(3), 8 (b)(3), because an alien who fails to establish a well-founded fear of persecution will, by definition, fail to show a “clear probability” of persecution. Ghaly v. INS, 58 F.3d 1425, 1429 (9th Cir. 1995).

For the foregoing reasons, the petition for review is DENIED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.