Rwaid v. Holder

FILED
NOT FOR PUBLICATION AUG 26 2011

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

FOR THE NINTH CIRCUIT

YAHYA ABDU HIZAM RWAID, No. 07-73889

Petitioner, Agency No. A71-803-545

v.

ERIC H. HOLDER, JR.,* Attorney MEMORANDUM**
General,

Respondent.

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

Submitted July 18, 2011***
San Francisco, California

Before: TASHIMA and RAWLINSON, Circuit Judges, and RAKOFF, Senior

* Eric H. Holder, Jr., is substituted for his predecessor, Michael B.
Mukasey, as Attorney General, pursuant to Fed. R. App. P. 43(c)(2).

** This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Cir. R. 36-3.
*** The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. . 34(a)(2)(C).
 District Judge.****

Yahya Abdu Hizam Rwaid (“Petitioner”), a native and citizen of Yemen,

seeks review of the final order of the Board of Immigration Appeals (“BIA”)

affirming the Immigration Judge’s (“IJ”) decision to deny Petitioner’s application

for asylum, withholding of removal, and protection under the Convention Against

Torture (“CAT”). We have jurisdiction to review the BIA’s final order under 8

U.S.C. § 1252, Immigration and Nationality Act (“INA”) § 242. We conclude that

the evidence in the record does not compel the conclusion that the determination of

the BIA was incorrect. See Gu v. Gonzales, 454 F.3d 1014, 1018 (9th Cir. 2006).

We therefore deny the petition for review.

1. To establish eligibility for asylum, Petitioner must demonstrate either

past persecution or a well-founded fear of future persecution in Yemen. Id. at

1019. The evidence does not compel the conclusion that Petitioner’s past

experiences in Yemen rose to the level of persecution. Persecution is an “extreme

concept,” Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir. 1995), and is defined as “the

infliction of suffering or harm . . . in a way regarded as offensive.” Li v. Ashcroft,

356 F.3d 1153, 1158 (9th Cir. 2004) (en banc) (internal quotation marks omitted).

****
The Honorable Jed S. Rakoff, Senior United States District Judge for
the Southern District of New York, sitting by designation.

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As the BIA pointed out, Petitioner and his family were never physically harmed or

threatened while Petitioner was residing in Yemen. The only interaction Petitioner

had with the Socialist Party while he lived in Yemen was the single recruitment

effort in 1982. Petitioner was neither harmed nor threatened during this recruiting

attempt. While this Court has found that physical violence, Hoxha v. Ashcroft, 319

F.3d 1179, 1182 n.5 (9th Cir. 2003), and threats of serious harm or death may

constitute persecution, Khup v. Ashcroft, 376 F.3d 898, 903 (9th Cir. 2004), the

record does not show that Petitioner was threatened with either.

2. Petitioner argues that he has a well-founded fear of future persecution

because of the alleged killing of his father, the alleged kidnaping of his children,

and his general belief that he will be targeted for revenge because of his father’s

role as a government informant. The BIA did not err in giving little weight to

Petitioner’s testimony regarding the alleged attacks on his family members because

it was based largely on speculation. See Mendez-Gutierrez v. Gonzales, 444 F.3d

1168, 1171-72 (9th Cir. 2006). There is no evidence in the record supporting

Petitioner’s belief that his father was kidnaped and killed by the Socialist Party or

that there was a connection between his father’s work as a government informant

in 1982 and his death in 1997. Petitioner also fails to articulate a reasonable basis

for his belief that his two missing children were kidnaped by the Socialists because

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of his father’s work for the government. See, e.g., Prasad v. INS, 47 F.3d 336, 340

(9th Cir. 1995) (concluding that the absence of some evidence connecting the

harassment of petitioners to a protected ground means that the harassment cannot

support an asylum claim).

A well-founded fear of persecution “must be both subjectively genuine and

objectively reasonable.” Mendez-Gutierrez, 444 F.3d at 1171. While Petitioner’s

fear appears to be subjectively genuine, he fails to provide “credible, direct, and

specific evidence in the record” that his fear is objectively reasonable. Id. (quoting

Ladha v. INS, 215 F.3d 889, 897 (9th Cir. 2000)).

3. A petitioner who fails to satisfy the lower standard of proof for

asylum necessarily fails to satisfy the more stringent standard for withholding of

removal. Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003). Because

Petitioner’s application for withholding of removal is based on the same facts as

his application for asylum, the BIA correctly held that Petitioner did not meet the

stricter standard for withholding of removal.

4. Substantial evidence supports the BIA’s finding that Petitioner failed

to establish eligibility for protection under CAT because he failed to demonstrate

that he is more likely than not to be tortured if he returns to Yemen. See Wakkary

v. Holder, 558 F.3d 1049, 1067-68 (9th Cir. 2009).

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The petition for review is DENIED.

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