Abdus Samad v. Matthew Whitaker

FILED NOT FOR PUBLICATION JAN 10 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ABDUS SAMAD, No. 16-71752 Petitioner, Agency No. A208-169-040 v. MEMORANDUM* MATTHEW G. WHITAKER, Acting Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted October 11, 2018 Seattle, Washington Before: N.R. SMITH and CHRISTEN, Circuit Judges, and PAYNE,** District Judge. Abdus Samad petitions for review the decision of the Board of Immigration Appeals (“BIA”) denying his applications for asylum, withholding of removal, and * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Robert E. Payne, Senior United States District Judge for the Eastern District of Virginia, sitting by designation. protection under the Convention Against Torture. We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition for review. We review the BIA’s “legal conclusions de novo and its factual findings for substantial evidence.”1 Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc) (citations omitted). We apply a substantial evidence review of the BIA’s denial of asylum, even where, as here, the immigration judge (“IJ”) found Samad to be credible. Nagoulko v. INS, 333 F.3d 1012, 1015 (9th Cir. 2003). “Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Landin-Zavala v. Gonzales, 488 F.3d 1150, 1151 (9th Cir. 2007) (internal quotation marks omitted) (quoting Ibarra-Flores v. Gonzales, 439 F.3d 614, 618 (9th Cir. 2006)). Thus, “[s]ubstantial evidence review means that we may only reverse the agency’s determination where ‘the evidence compels a contrary conclusion from that adopted by the BIA.’” Parada v. Sessions, 902 F.3d 901, 908-09 (9th Cir. 2018) (quoting Afriyie v. Holder, 613 F.3d 924, 931 (9th Cir. 2010)). 1 The BIA cited Matter of Burbano in its decision. When “the BIA cites Burbano and also provides its own review of the evidence and law, we review both the IJ’s and the BIA’s decisions.” Ali v. Holder, 637 F.3d 1025, 1028-29 (9th Cir. 2011). 2 1. To establish eligibility for asylum on the basis of past persecution, Samad “must show: (1) an incident, or incidents, that rise to the level of persecution; (2) that is ‘on account of’ one of the statutorily-protected grounds; and (3) is committed by the government or forces the government is either ‘unable or unwilling’ to control.” Navas v. INS, 217 F.3d 646, 655-56 (9th Cir. 2000) (footnotes omitted). The BIA concluded that Samad’s past harm did not rise to the level of persecution and that the harm suffered was not “on account of” a protected ground. Samad does not point to evidence in the record which “compels a contrary conclusion from that adopted by the BIA.” Parada, 902 F.3d at 909. A. Substantial evidence supports the BIA’s decision that the threats and beating suffered by Samad ...

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