FILED
NOT FOR PUBLICATION MAR 25 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ENELE MAAFU TUIFAGALELE, No. 07-70903
Petitioner, Agency No. A078-185-527
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 16, 2010 **
Before: SCHROEDER, PREGERSON, and RAWLINSON, Circuit Judges.
Enele Maafu Tuifagalele, a native and citizen of Fiji, petitions for review of
the Board of Immigration Appeals’ (“BIA”) order denying his motion to remand
and dismissing his appeal from an immigration judge’s (“IJ”) decision denying his
*
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).
PR/Research
application for asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C.
§ 1252. We review for substantial evidence factual findings, Nagoulko v. INS, 333
F.3d 1012, 1015 (9th Cir. 2003), and de novo claims of due process violations in
removal proceedings, Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000). We
review for abuse of discretion the BIA’s denial of the motion to remand.
Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2002). We deny the petition for
review.
Substantial evidence supports the IJ’s finding that, even if Tuifagalele’s
asylum application was timely, the discrimination and harassment he experienced
on account of his Tongan ethnicity and his support for Indo-Fijians did not rise to
the level of persecution. See Nagoulko, 333 F.3d at 1016-17; see also Padash v.
INS, 358 F.3d 1161, 1166 (9th Cir. 2004). Substantial evidence also supports the
IJ’s finding that Tuifagalele failed to establish a well-founded fear of future
persecution. See id. Accordingly, Tuifagalele’s asylum claim fails. In light of our
disposition regarding Tuifagalele’s asylum claim, we do not address his due
process and equal protection contentions relating to the BIA’s denial of his asylum
application as untimely.
PR/Research 2 07-70903
Because Tuifagalele did not establish eligibility for asylum, it necessarily
follows that he did not satisfy the more stringent standard for withholding of
removal. See Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006).
Substantial evidence supports the IJ’s denial of CAT relief, because
Tuifagalele failed to establish it is more likely than not he would be tortured if
returned to Fiji. See El Himri v. Ashcroft, 378 F.3d 932, 938 (9th Cir. 2004).
Tuifagalele’s contention that his due process rights were violated because
the IJ rushed through the hearing and denied him the opportunity to fully and
properly present his case fails because he did not demonstrate prejudice. See Lata
v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error and substantial
prejudice for a petitioner to prevail on a due process claim). Tuifagalele’s
contention that the BIA deprived him of due process and equal protection by
misapplying the law to the facts of his case is not supported by the record. See id.
Finally, the BIA did not abuse its discretion in denying Tuifagalele’s motion
to remand proceedings because he failed to demonstrate the evidence he submitted
was previously unavailable. See 8 C.F.R. § 1003.2(c)(1). We reject Tuifagalele’s
conclusory equal protection contention relating to the BIA’s consideration of his
explanations contained in the motion to remand.
PETITION FOR REVIEW DENIED.
PR/Research 3 07-70903