FILED
NOT FOR PUBLICATION JUL 18 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DUMITRU ALEXANDRU BELEA and No. 10-71512
SEMIDA ELENA VARVAS,
Agency Nos. A099-577-668,
Petitioners, A099-577-669
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted July 9, 2012
Seattle, Washington
Before: REINHARDT, KLEINFELD, and M. SMITH, Circuit Judges.
Petitioners Dumitru Belea and Semida Varvas, husband and wife, and
natives and citizens of Romania, petition for review of the Board of Immigration
Appeals’ (BIA) final order denying their applications for asylum, withholding of
removal, and relief under the Convention Against Torture (CAT). Because the
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
parties are familiar with the factual and procedural history of this case, we repeat
only those facts necessary to resolve the issues raised on appeal. We have
jurisdiction pursuant to 8 U.S.C. § 1252, and we deny the petition for review.
As a preliminary matter, Petitioners raise two procedural challenges to the
BIA decision. First, Petitioners contend that the immigration judge (IJ) did not
make a finding as to their claim of well-founded fear of future persecution, and that
the BIA therefore erred in adopting a “nonexistent” finding. A review of the IJ
decision, however, clearly shows that, although the IJ never used the exact words
“well-founded fear of future persecution,” he did consider and make a finding on
the asylum claim. Second, Petitioners argue that the IJ did not make a
determination as to their withholding of removal claim, and that the BIA engaged
in improper factfinding on appeal when it denied that claim, in violation of 8
C.F.R. § 1003.1. Although the IJ did not explicitly refer to Petitioners’
withholding of removal claim in his decision, he denied “the application for the
other forms of relief” which necessarily included the withholding claim.
Moreover, the BIA did not engage in factfinding on appeal; instead, it held that
because Petitioners failed to satisfy the standard for asylum, they necessarily failed
to satisfy the more demanding standard for withholding of removal. This is a legal
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determination, not a finding of fact. Accordingly, we reject Petitioners’ procedural
challenges to the BIA decision.
Even if we assume, without deciding, that the asylum applications were
timely, the BIA’s conclusion that Petitioners have failed to establish that they face
a “well-founded fear of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion” is supported by
substantial evidence. 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1). An asylum
applicant bears the burden of proof to show that: (1) the treatment rises to the level
of persecution; (2) the persecution was on account of one or more protected
grounds; and (3) the persecution was committed by the government, or by forces
that the government was unable or unwilling to control. Baghdasaryan v. Holder,
592 F.3d 1018, 1023 (9th Cir. 2010). Petitioners concede that they have not faced
past persecution, but contend that they have a well-founded fear of future
persecution based on their participation in a police investigation that resulted in the
criminal prosecution of Constantin Durbalau.
Petitioners’ asylum claims fail for at least two reasons. First, Petitioners
have not put forth any “credible, direct, and specific evidence” that would support
a “reasonable fear of persecution” with regards to Durbalau. See Ladha v. INS,
215 F.3d 889, 897 (9th Cir. 2000), overruled on other grounds by Abebe v.
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Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (en banc) (per curiam). Constantin
Durbalau pled guilty to his charged offense. Petitioners have not put forth any
specific evidence that Durbalau know their identity as informants or would target
them for persecution because of their actions. Second, Petitioners have not shown
that any potential persecution would be committed by the government or by forces
that the government would be unwilling or unable to control. See Avetova-Elisseva
v. INS, 213 F.3d 1192, 1196 (9th Cir. 2000). Petitioners’ speculative theory that
the government sanctioned Durbalau’s visa business simply because of how
smooth the process was for them is insufficient to meet their burden of proof.
Petitioners additionally fail to put forth any specific evidence that the government
would be unable to control persecution by Durbalau, or by any similar visa rings.
Because Petitioners fail to meet the lower burden of proof for asylum, their
withholding of removal claims necessarily fail. See Farah v. Ashcroft, 348 F.3d
1153, 1156 (9th Cir. 2003).
Finally, substantial evidence supports the BIA’s denial of CAT relief
because Petitioners failed to establish it is more likely than not that they would be
tortured by or with the acquiescence of the government if returned to Romania. See
Silaya v. Mukasey, 524 F.3d 1066, 1073 (9th Cir. 2008).
PETITION DENIED.
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