NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JAN 31 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
MOE TIN-U, No. 06-72328
Petitioner, Agency No. A095-185-230
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 2, 2010**
Pasadena, California
Before: RAWLINSON and M. SMITH, Circuit Judges, and JONES, District
Judge.***
Petitioner Moe Tin-U, a native and citizen of Burma, seeks review of a
Board of Immigration Appeals (BIA) order denying his application for asylum,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 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 Robert Clive Jones, United States District Judge for
the District of Nevada, sitting by designation.
withholding of removal, and protection under the Convention Against Torture
(CAT). As the facts and procedural history are familiar to the parties, we do not
recite them here except as necessary to explain our disposition. We affirm.
We have jurisdiction to review the timeliness of Petitioner’s application for
asylum and the exceptional circumstances exception. Husyev v. Mukasey, 528 F.3d
1172, 1179–80 (9th Cir. 2008). Petitioner failed to file his application for asylum
within one year after the date of his arrival in the United States. 8 U.S.C. §
1158(a)(2)(B). Petitioner did not show that he had extraordinary circumstances
justifying his five-month delay in filing his petition for asylum upon expiration of
his visa. See Toj-Culpatan v. Holder, 612 F.3d 1088, 1090–91 (9th Cir. 2010).
The BIA did not err in ruling that Petitioner failed to show a clear
probability that he would be subject to future persecution because he is gay or
because he expressed his political opinions. See INS v. Stevic, 467 U.S. 407,
429–30 (1984). Further, although Petitioner may be arrested on his return for
failing to maintain a passport, he did not prove that such arrest will more likely
than not result in torture in contravention of the CAT. See Ahmed v. Keisler, 504
F.3d 1183, 1200–01 (9th Cir. 2007) (holding that even though petitioner suffered
persecution by being arrested and beaten on account of his political opinions, such
conduct did not rise to the level of torture).
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PETITION DENIED.
3