Prasad v. Holder

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NOT FOR PUBLICATION MAR 25 2010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

AMBIKA PRASAD, No. 07-71821

Petitioner, Agency No. A095-591-654

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.

Ambika Prasad, a native and citizen of Fiji, petitions for review of the Board

of Immigration Appeals’ order dismissing his appeal from an immigration judge’s

(“IJ”) decision denying his application for asylum, withholding of removal,

*
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
protection under the Convention Against Torture (“CAT”), and voluntary

departure. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for

substantial evidence, Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1055-56 (9th

Cir. 2006), and we dismiss in part and deny in part the petition for review.

We lack jurisdiction to review the IJ’s discretionary denial of voluntary

departure. 8 U.S.C. §§ 1229c(f), 1252(a)(2)(B)(i).

Substantial evidence supports the agency’s finding that, even if Prasad’s

asylum application was timely, he did not establish past persecution or a well-

founded fear of future persecution because he failed to demonstrate the

government was unable or unwilling to protect him from the native Fijians who

robbed and physically harmed him. See Nahrvani v. Gonzales, 399 F.3d 1148,

1154 (9th Cir. 2005) (petitioner did not show government was “unable or unwilling

to control” where German police took reports and investigated incidents of threats,

even though police did not solve the crimes); see also Castro-Perez v. Gonzales,

409 F.3d 1069, 1072 (9th Cir. 2005) (noting the burden is on the applicant to show

that the government is unable or unwilling to control the non-governmental

persecutor). Further, the record does not compel the conclusion that Prasad

established a pattern or practice of persecution of Indo-Fijians in Fiji. See Wakkary

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v. Holder, 558 F.3d 1049, 1060-62 (9th Cir. 2009). Accordingly, Prasad’s asylum

claim fails.

Because Prasad 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 agency’s denial of Prasad’s CAT claim

because he failed to demonstrate it is more likely than not he will be tortured if

returned to Fiji. See Arteaga v. Mukasey, 511 F.3d 940, 948-49 (9th Cir. 2007).

PETITION FOR REVIEW DISMISSED in part; DENIED in part.

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