Juan Vasquez Pena v. Jefferson Sessions

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 21 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JUAN LUIS VASQUEZ PENA and No. 10-70395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 ...

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