483 F. App'x 350
9th Cir.
2012

Harlan Hilman and Eka Pratisthani Anak Agung Ayu v. Eric H. HOLDER, Jr., Attorney General

No. 07-70553

United States Court of Appeals, Ninth Circuit

September 18, 2012

MEMORANDUM**

Harlan Hilman and Eka Pratisthani Anak Agung Ayu, natives and citizens of Indonesia, petition for review of the Board of Immigration Appeals (“BIA“) order dismissing their appeal from an immigration judge‘s decision denying their application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT“). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the agency‘s factual findings, and we review de novo the agency‘s legal determinations. Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir.2009). We deny the petition for review.

Substantial evidence supports the BIA‘s denial of past persecution because Hilman did not establish his father mistreated him on account of his Christian religion, see Ochave v. INS, 254 F.3d 859, 865-66 (9th Cir.2001) (requiring alien to establish nexus between alleged persecution and a protected ground), and because he did not show his mistreatment by classmates and teachers rose to the level of persecution, see Nagoulko v. INS, 333 F.3d 1012, 1016-17 (9th Cir.2003) (record did not compel finding that Ukrainian Pentecostal Christian who was “teased, bothered, discriminated against and harassed” suffered from past persecution); Hoxha v. Ashcroft, 319 F.3d 1179, 1181-82 (9th Cir.2003) (lifetime of harassment, threats, and mistreatment including one beating did not compel finding of past persecution). In the absence of past persecution, petitioners’ humanitarian asylum claim necessarily fails. See 8 C.F.R. § 1208.13(b)(1)(iii). Because Hilman failed to demonstrate past persecution, we reject his contention that he is entitled to a presumption of a well-founded fear of persecution. Substantial evidence also supports the BIA‘s determination that Hilman did not demonstrate a well-founded fear of persecution due to either his Christianity or his United States citizen son. See Halim v. Holder, 590 F.3d 971, 977-78 (9th Cir.2009).

Because Hilman failed to satisfy the lower burden of proof for asylum, he necessarily failed to meet the higher clear probability standard for withholding of removal. See Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir.2006).

Finally, substantial evidence supports the BIA‘s denial of Hilman‘s CAT claim because he did not establish it is more likely than not he will be tortured if returned to Indonesia. See Wakkary, 558 F.3d at 1067-68.

PETITION FOR REVIEW DENIED.

Amrit SINGH, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 07-70553.

United States Court of Appeals, Ninth Circuit.

Submitted Sept. 10, 2012.* Filed Sept. 18, 2012.

Jaime Jasso, Esquire, Law Offices of Jaime Jasso, Westlake Village, CA, for Petitioner.

Molly Louise Debusschere, Trial, Mary Lee Quinn, Esquire, Trial, Patricia Ann Smith, Senior Litigation Counsel, U.S. Department of Justice, Washington, DC, Ronald E. Lefevre, Office of the District Counsel Department of Homeland Security, San Francisco, CA, for Respondent.

Before: WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.

MEMORANDUM**

Amrit Singh, a native and citizen of India, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge‘s (“IJ“) decision denying his motion to reopen deportation proceedings conducted in absentia. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, and review de novo questions of law. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir.2005). We deny the petition for review.

Singh contends that this petition for review was rendered moot when he was deported from the United States because that deportation terminated these proceedings. See 8 C.F.R. §§ 245.1(c)(8)(ii)(A), 245.2(a)(1). This contention fails because the government‘s admittedly erroneous deportation of Singh did not constitute a “departure” within the meaning of the immigration laws. See Salgado-Diaz v. Gonzales, 395 F.3d 1158, 1164 (9th Cir.2005) (the term “‘departure’ in the immigration context excludes departures illegally executed by the government“); see also Mendez-Alcaraz v. Gonzales, 464 F.3d 842, 844 (9th Cir.2006) (under IIRIRA‘s permanent rules, the court has jurisdiction over a petition for review filed by a petitioner who has been deported).

The agency did not abuse its discretion in denying Singh‘s motion to reopen based on lack of notice where the record reflects that he was personally served with notice of the hearing at which he was ordered deported in absentia. See 8 C.F.R. § 1003.23(b)(4)(iii)(A)(2). Singh‘s contention that the IJ violated his right to due process by ruling on his motion before he had an opportunity to review the record of proceedings fails because he has not established prejudice resulting from the alleged violation. See Robleto-Pastora v. Holder, 591 F.3d 1051, 1062 (9th Cir.2010) (due process claim relating to inability to obtain immigration records failed where petitioner could not show that the violation potentially affected his eligibility for relief).

PETITION FOR REVIEW DENIED.

Notes

*
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
**
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.