FILED
NOT FOR PUBLICATION APR 13 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
KAVITA KOMAL; SURUJ PAL, et al., No. 07-70316
Petitioners, Agency Nos. A070-059-038
A070-059-039
v. A070-059-040
A071-787-248
ERIC H. HOLDER Jr., Attorney General,
Respondent. MEMORANDUM *
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 5, 2010 **
Before: RYMER, McKEOWN, and PAEZ, Circuit Judges.
Kavita Komal and Suruj Pal, wife and husband and their children, natives
and citizens of Fiji, petition for review of the Board of Immigration Appeals’
(“BIA”) order dismissing their appeal from an immigration judge’s decision
*
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).
denying their applications for asylum and withholding of removal. We have
jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence findings of
fact, Hoxha v. Ashcroft, 319 F.3d 1179, 1182, n.4 (9th Cir. 2003), and de novo
questions of law, Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000), and we deny
the petition for review.
The BIA correctly concluded that petitioners failed to establish past
persecution based on the agency’s previous credibility finding, which the court
upheld in Pal v. INS, 204 F.3d 935, 938 (9th Cir. 2000). See Belayneh v. INS, 213
F.3d 488, 492 (9th Cir. 2000) (issue preclusion applies in immigration
proceedings); see also Matter of Fedorenko, 19 I. & N. Dec. 57, 61 (BIA 1984)
(applying the doctrine of collateral estoppel where the alien was given a full and
fair opportunity to litigate in prior proceedings).
In assessing future fear, the agency applied the disfavored group analysis set
forth in Sael v. Ashcroft, 386 F.3d 922, 927-29 (9th Cir. 2004), but concluded that
because petitioners were not credible with respect to their claims of past harm, they
did not demonstrate the requisite individualized risk of persecution. Substantial
evidence supports the agency’s finding. Cf. Sael, 386 F.3d at 927-29. Further, on
the record, the petitioners failed to establish a pattern or practice of persecution of
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Indo-Fijians in Fiji. See Wakkary v. Holder, 558 F.3d 1049, 1060-62 (9th Cir.
2009).
Because petitioners have not met the standard for asylum, they necessarily
cannot meet the more stringent standard for withholding of removal. See Zehatye
v. Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006).
PETITION FOR REVIEW DENIED.
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