FILED
NOT FOR PUBLICATION NOV 14 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SARITA KUMARI NAND; et al., No. 07-73209
Petitioners, Agency Nos. A078-642-072
A078-642-073
v. A078-642-074
A072-403-877
ERIC H. HOLDER, Jr., Attorney General,
Respondent. MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 12, 2011
San Francisco, California
Before: HUG, KLEINFELD, and W. FLETCHER, Circuit Judges.
Sarita Kumari Nand (“lead petitioner”), her husband, Bishwa Nand, and
their son, Binaal Nand Sahai, natives and citizens of Fiji, petition for review of the
Board of Immigration Appeal’s (“BIA”) affirmance of an immigration judge’s
denial of their applications for asylum, withholding of removal, and relief under
the Convention Against Torture (“CAT”). The petitioners also seek review of the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
BIA’s denial of their motion to reopen. We have jurisdiction under 8 U.S.C.
§ 1252, and we deny the petition.
Substantial evidence supports the BIA’s conclusion that the lead petitioner
did not meet her burden of establishing past persecution. See Zehatye v. Gonzales,
453 F.3d 1182, 1184-85 (9th Cir. 2006); see also Lim v. INS, 224 F.3d 929, 936-37
(9th Cir. 2000) (holding that most threats do not rise to the level of persecution);
Korablina v. INS, 158 F.3d 1038, 1043-44 (9th Cir. 1998) (recognizing that acts of
violence against family members may show past persecution only when that
violence creates a pattern of persecution closely tied to the petitioner).
Substantial evidence also supports the BIA’s conclusion that the lead
petitioner failed to meet her burden of establishing an independent well-founded
fear of persecution on statutorily protected grounds. The record does not compel
the conclusion that she will be targeted individually for future persecution. See 8
C.F.R. § 1208.16 (b)(2); see also Lolong v. Gonzales, 484 F.3d 1173, 1179-80 (9th
Cir. 2007) (en banc) (recognizing that a “general, undifferentiated claim” does not
establish eligibility for asylum); Prasad v. INS, 47 F.3d 336, 340 (9th Cir. 1995)
(holding that record did not compel finding of well-founded fear of future
persecution where Indo-Fijian petitioner had been hit and kicked by ethnic Fijians
and there was no evidence that rape of petitioner’s cousin’s wife and murder of
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cousin were tied to petitioner or perpetrated on account of race or political
opinion). The record also does not compel the conclusion that the Fijian
government has a systematic pattern and practice of persecuting Indo-Fijians. See
Wakkary v. Holder, 558 F.3d 1049, 1060-62 (9th Cir. 2009). Accordingly,
petitioners are not eligible for asylum. See id. at 1060; Deloso v. Ashcroft, 393
F.3d 858, 863-64 (9th Cir. 2005).
Because the lead petitioner failed to meet the lower burden of proof for
asylum, she necessarily failed to establish eligibility for withholding of removal.
See Zehatye, 453 F.3d at 1190.
In addition, a fact finder would not be compelled to find the lead petitioner
eligible for CAT relief because she offered no evidence that she would more likely
than not be tortured if she were removed to Fiji. See Tamang v. Holder, 598 F.3d
1083, 1095 (9th Cir. 2010).
Petitioners contend that the BIA’s failure to acknowledge statements
contained in an affidavit they filed with their motion to reopen was an implicit and
improper finding that the statements were not credible, and they further argue that
the BIA was required to address all of the facts and evidence they submitted in
support of their motion to reopen. A failure to discuss every statement in the
affidavit submitted by the petitioners with their motion to reopen does not indicate
3 07-73209
that the BIA discredited any of the statements contained in the affidavit. See
Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010) (concluding that there was
no indication in the record that BIA failed to credit affidavit filed with motion to
reopen even though BIA did not explicitly reference the petitioner’s statements).
In addition, the BIA is not required to address every fact and argument when
deciding that a petitioner has not established a prima facie case that would make
her eligible to have her case reopened. See id. at 990-91; Lin v. Holder, 588 F.3d
981, 987 (9th Cir. 2009).
The BIA also did not abuse its discretion by denying the motion to reopen
because new evidence of generalized civil unrest does not make a petitioner
eligible for relief. See Najmabadi, 597 F.3d at 990; Lolong, 484 F.3d at 1179.
Because the lead petitioner’s petition fails, her son’s and husband’s
derivative petitions also fail. See Kumar v. Gonzales, 439 F.3d 520, 521, 525 (9th
Cir. 2006).
PETITION FOR REVIEW DENIED.
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