Udon Lertjanthuk v. Jefferson Sessions , 709 F. App'x 506 ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 25 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UDON LERTJANTHUK, No. 15-72426
16-70302
Petitioner,
Agency No. A040-270-118
v.
JEFFERSON B. SESSIONS III, Attorney MEMORANDUM*
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted January 9, 2018
Pasadena, California
Before: M. SMITH and FRIEDLAND, Circuit Judges, and RAKOFF,** District
Judge.
Udon Lertjanthuk appeals from the Board of Immigration Appeal’s (“BIA”)
dismissal of his appeal of an Immigration Judge’s (“IJ”) decision denying his
applications for withholding of removal and protection under the Convention
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
Against Torture (“CAT”) and finding him to be competent to proceed pro se. We
have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1), and we deny Lertjanthuk’s
petition for review.
1. “To qualify for withholding of removal, an applicant must show a ‘clear
probability’ of future persecution . . . ‘on account of’ one of the statutorily
enumerated grounds: race, religion, nationality, political opinion, or membership in
a particular social group.” Garcia v. Holder, 749 F.3d 785, 791 (9th Cir. 2014)
(first quoting Alvarez-Santos v. INS, 332 F.3d 1245, 1255 (9th Cir. 2003); and then
quoting INS v. Elias-Zacarias, 502 U.S. 478, 480 (1992)). Lertjanthuk argues that
the agency erred when it concluded that his past harm was not on account of an
imputed political opinion or his family membership, but he fails to demonstrate
any nexus between the past harm he suffered and the protected grounds he
identifies. Our decision in Barajas-Romero v. Lynch, 846 F.3d 351 (9th Cir.
2017), does not require the agency to reconsider this issue, because here the IJ and
BIA concluded that a protected ground was not a reason at all for the past
persecution—not that it was one of many reasons.
2. To demonstrate eligibility for protection under CAT, an alien must show
that “‘she is more likely than not to be tortured [upon return to her home country],’
either ‘by or at the instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity.’” Avendano-Hernandez v.
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Lynch, 800 F.3d 1072, 1078-79 (9th Cir. 2015) (first quoting 8 C.F.R.
§ 1208.17(a); and then quoting 8 C.F.R. § 1208.18(a)(1)). Substantial evidence
supports the conclusion that Lertjanthuk “has not shown that he likely will be
tortured, at the instigation or with the consent or acquiescence of an official of the
Thai government.” Indeed, the previous events took place over 30 years ago, and
there is no evidence in the record indicating that the village chief is still alive or
living in the same village.
3. Lertjanthuk has also failed to show any error in the IJ’s process for
determining that he was competent to represent himself pro se. Here, “in an
abundance of caution,” the IJ referred Lertjanthuk to a forensic psychologist for
further evaluation, even though the IJ “had already made a finding that
[Lertjanthuk] was competent and . . . believed [he] was in fact competent.” And
although Lertjanthuk argues that the forensic psychologist’s evaluation of his
memory was inadequate, he identifies no standard showing that this was the case. 1
4. “An en banc hearing . . . is not favored and ordinarily will not be ordered
unless: (1) en banc consideration is necessary to secure or maintain uniformity of
the court’s decisions; or (2) the proceeding involves a question of exceptional
1
Lertjanthuk argues that the forensic psychologist applied an incorrect
presumption. But even assuming this is true, he fails to cite any authority that
shows that this renders the evaluation facially invalid. And there is no indication
that the IJ or BIA applied the wrong presumption in any event.
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importance.” Fed. R. App. P. 35(a). We reject Lertjanthuk’s request to take this
case en banc to overturn Ramirez-Castro v. INS, 287 F.3d 1172 (9th Cir. 2002).
Lertjanthuk has identified no conflict in the case law. Moreover, this court
recently revisited this area of precedent in Nunez-Reyes v. Holder, 646 F.3d 684(9th Cir. 2011) (en banc), and we decline to do so again here.
Petition DENIED.
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