Andre Beetge v. Jefferson Sessions

FILED
NOT FOR PUBLICATION
NOV 21 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANDRE BEETGE, No. 15-70055

Petitioner, Agency No. A089-996-827

v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,

Respondent.

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

Submitted November 14, 2017**
San Francisco, California

Before: RAWLINSON and BYBEE, Circuit Judges, and SMITH,*** Chief District
Judge.

Petitioner Andre Beetge (Beetge), a native and citizen of South Africa,

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable William E. Smith, Chief United States District Judge
for the District of Rhode Island, sitting by designation.
petitions for review of a final order of removal. Beetge asserts that the Board of

Immigration Appeals (BIA) erred by denying his requests for asylum, withholding

of removal, and relief under the Convention Against Torture (CAT).

Substantial evidence supports the BIA’s denial of relief. See Yali

Wang v. Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017). Beetge alleges that he

suffered past persecution because he, a white male, had served in the South African

military during apartheid. However, Beetge failed to establish the South African

government’s inability or unwillingness to control his alleged persecutors. See

Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1062 (9th Cir. 2017) (en banc).

Beetge directs this Court to three instances of violence. After a group of men

attacked Beetge outside of a nightclub in 1991, police took his report of the

incident; however, Beetge could not identify his attackers and the men were not

located. In 2002, Beetge’s brother was assaulted during a robbery at Beetge’s

home. Beetge filed a report and police dispatched helicopters to search for the

intruders; yet, when police apprehended potential suspects, Beetge’s brother

declined to identify them. Rather than establishing the South African government’s

inability to control racially motivated violence, this evidence demonstrates law

enforcement’s responsiveness to the incidents. See Truong v. Holder, 613 F.3d

938, 941 (9th Cir. 2010) (where police “dutifully made reports after each incident

2
and indicated that they would investigate,” this Court, without more, declined to

“infer government complicity or indifference from the mere fact that . . . police

were unable to locate the [petitioners’] unknown assailants”); see also Singh v.

I.N.S., 134 F.3d 962, 968 (9th Cir. 1998) (“[T]he police in the case at bar

responded to Petitioner’s location when she called them, but they took no further

action. As the immigration judge noted, this could have been due to a lack of

suspects, few leads, etc. . . .”) (footnote reference omitted). Finally, although

Beetge testified to the violent killing of his friend in South Africa in 2003, Beetge

conceded that he did not know whether the attack had any connection to him. The

record does not compel a conclusion contrary to the BIA’s determination that

Beetge failed to demonstrate past persecution. See Yali Wang, 861 F.3d at 1007.

Because Beetge did not establish past persecution, he is not entitled to a

regulatory presumption of a fear of future persecution. See 8 C.F.R. § 1208.13(b).

Beetge nevertheless asserts that he fears retaliatory persecution by current

members of the South African government. Although Beetge’s credible testimony

established his subjectively genuine fear of future persecution, Beetge failed to

demonstrate an objectively reasonable fear of future persecution. See Rusak v.

Holder, 734 F.3d 894, 896 (9th Cir. 2013).

3
Beetge’s documentary evidence, while acknowledging racial tension in

South Africa, attested to the coordinated efforts of the South African government

in response to incidents of crime. Beetge himself twice returned to South Africa in

2006, without incident. Beetge’s brother, who also served in the military, has

resided in South Africa since 2010 without incident. See Sinha v. Holder, 564 F.3d

1015, 1022 (9th Cir. 2009), as amended (“[A] petitioner’s fear of future

persecution is weakened, even undercut, when similarly-situated family members

living in the petitioner’s home country are not harmed.”) (citation and internal

quotation marks omitted) (emphasis in the original). Thus, Beetge’s subjective fear

of retaliation remains “too speculative” to support the objective component of fear

of future persecution. Nahrvani v. Gonzales, 399 F.3d 1148, 1154 (9th Cir. 2005)

(citations omitted).

Because Beetge failed to demonstrate eligibility for asylum, he necessarily

failed to meet the more stringent burden of demonstrating entitlement to

withholding of removal. See Yali Wang, 861 F.3d at 1009. Finally, substantial

evidence supports the BIA’s determination that Beetge failed to show that it is

more likely than not that he would be tortured if removed to South Africa, such

that the BIA properly denied CAT relief. See 8 C.F.R. § 208.16(c).

PETITION DENIED.