Salazar Castellano v. Holder

FILED
NOT FOR PUBLICATION JAN 10 2011

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

VITALINA EDELMIRA SALAZAR No. 05-75517
CASTELLANO,
Agency No. A073-122-949
Petitioner,

v. MEMORANDUM*

ERIC H. HOLDER, Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted March 9, 2010**
San Francisco, California

Before: REINHARDT and BYBEE, Circuit Judges, and SELNA, District Judge.***

Vitalina Edelmira Salazar Castellano petitions for review of a decision of the

Board of Immigration Appeals (“BIA”) summarily affirming an immigration

*
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).
***
The Honorable James V. Selna, District Judge for the U.S. District
Court for Central California, Santa Ana, sitting by designation.
judge’s denial of her applications for asylum, withholding of removal, and

protection under the Convention Against Torture (“CAT”).1 Substantial evidence

supports the Immigration Judge’s finding that Salazar Castellano failed to

demonstrate past persecution or a well-founded fear of future persecution on

account of a protected ground and we therefore deny the petition.

When, as in this case, the BIA affirms the immigration judge’s decision

without opinion, we review the immigration judge’s decision directly. See Garcia-

Martinez v. Ashcroft, 371 F.3d 1066, 1074 (9th Cir. 2004). Factual findings

underlying the immigration judge’s decision that an alien has not established

eligibility for asylum, withholding of removal, or CAT protection are reviewed for

substantial evidence. Gu v. Gonzales, 454 F.3d 1014, 1018 (9th Cir. 2006). Under

the Immigration and Nationality Act, “administrative findings of fact are

conclusive unless any reasonable adjudicator would be compelled to conclude to

the contrary.” 8 U.S.C. § 1252(b)(4)(B).

1
We do not address Salazar Castellano’s CAT claim because she waived that
issue by failing to address it in her opening brief. See Fed. R. App. P. 28(a)(9)(A);
Don v. Gonzales, 476 F.3d 738, 740 n.2 (9th Cir. 2007). We do not have
jurisdiction over Salazar Castellano’s humanitarian asylum claim because she
failed to exhaust her administrative remedies with respect to that claim. 8 U.S.C.
§1252(d)(1).

2
An applicant for asylum bears the burden of proving that she is unwilling or

unable to return to her country of origin “because of persecution or a well-founded

fear of future persecution on account of race, religion, nationality, membership in a

particular social group, or political opinion.” 8 U.S.C. §§ 1101(a)(42)(A), 1158

(b)(1)(B). In this case, the immigration judge found that the guerillas harmed

Salazar’s family because they were “simply interested in determining the

whereabouts of the neighbors,” rather than on account of Salazar’s family’s race,

religion, nationality, membership in a particular social group, or political opinion.

On the record before us, we cannot say that a reasonable adjudicator would be

“compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).

Therefore, Salazar Castellano was not entitled to a rebuttable presumption of

a well-founded fear of future persecution. In evaluating Salazar Castellano’s fear

of future persecution, the immigration judge did not err in finding that she had not

“met her burden of showing that she has a well-founded fear of future persecution

on account of one of the five grounds.” Again, a reasonable adjudicator would not

be “compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Instead, a

reasonable adjudicator could conclude, as the immigration judge did here, that the

respondent feared a return to Guatemala “because of the common crime that

permeates many parts of Guatemala.”

3
PETITION FOR REVIEW DENIED.