Manicad v. Holder , 440 F. App'x 596 ( 2011 )


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  •                                                                            FILED
    NOT FOR PUBLICATION                             JUN 28 2011
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS
    FOR THE NINTH CIRCUIT
    MARILYN ALCANTARA MANICAD,                       No. 08-70017
    a.k.a. Marilyn Cawaling Alcantara,
    Agency No. A097-368-244
    Petitioner,
    v.                                             MEMORANDUM *
    ERIC H. HOLDER, Jr., Attorney General,
    Respondent.
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Submitted June 15, 2011 **
    Before:        CANBY, O’SCANNLAIN and FISHER, Circuit Judges.
    Marilyn Alcantara Manicad, a native and citizen of the Philippines,
    petitions for review of the Board of Immigration Appeals’ order dismissing her
    appeal from an immigration judge’s (“IJ”) decision denying her application for
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    **
    The panel unanimously concludes this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    asylum, withholding of removal, and relief under the Convention Against Torture
    (“CAT”). We have jurisdiction under 
    8 U.S.C. § 1252
    . We review de novo
    questions of law and review for substantial evidence factual findings. See Husyev
    v. Mukasey, 
    528 F.3d 1172
    , 1178. We deny the petition for review
    The record does not compel the conclusion that extraordinary circumstances
    excused Manicad’s untimely asylum application. See 
    8 C.F.R. § 1208.4
    (a)(5).
    Because Manicad has not established eligibility for asylum, she is not entitled to a
    discretionary grant of relief. See Kalubi v. Ashcroft, 
    364 F.3d 1134
    , 1137 (9th Cir.
    2004) (“Asylum is a two-step process, requiring the applicant first to establish his
    eligibility for asylum . . . and second to show that he is entitled to asylum as a
    matter of discretion”). Accordingly, her asylum claim fails.
    Substantial evidence supports the IJ’s finding that the threats Manicad
    received do not rise to the level of persecution. See Lim v. INS, 
    224 F.3d 929
    , 936-
    37 (9th Cir. 2000) (rejecting a claim of past persecution because the threats were
    unfulfilled and were not so menacing as to cause “significant actual suffering or
    harm”). Substantial evidence also supports the IJ’s finding that Manicad failed to
    establish a clear probability of future persecution. See Nagoulko v. INS, 
    333 F.3d 1012
    , 1018 (9th Cir. 2003). In light of our conclusions, Manicad’s due process
    contention regarding the REAL ID Act fails. See Lata v. INS, 
    204 F.3d 1241
    , 1246
    2
    (9th Cir. 2000) (requiring prejudice for a petitioner to prevail on due process
    claim). Accordingly, Manicad’s withholding of removal claim fails.
    Finally, substantial evidence supports the IJ’s denial of Manicad’s CAT
    claim because she failed to show it is more likely than not that she will be tortured
    at the instigation of, or with the acquiescence of the Philippine government. See
    Silaya v. Mukasey, 
    524 F.3d 1066
    , 1073 (9th Cir. 2008). Manicad’s contention
    that the IJ violated due process by failing to evaluate her CAT claim is belied by
    the record.
    PETITION FOR REVIEW DENIED.
    3