Juan Vasquez Pena v. Jefferson Sessions ( 2018 )

NOT FOR PUBLICATION FILED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