Farzad Baktash v. William Barr

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 26 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT FARZAD BAKTASH, No. 17-71150 Petitioner, Agency No. A089-725-763 v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. SOURI MAZLOUM; et al., No. 17-71151 Petitioners, Agency Nos. A089-796-691 A089-796-692 v. A026-512-672 WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted February 11, 2020 Pasadena, California Before: BERZON, R. NELSON, and LEE, Circuit Judges. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Petitioners Farzad Baktash, Souri Mazloum, et al., natives of Iran and citizens of the Netherlands, seek review of the Board of Immigration Appeals’ (“BIA”) order dismissing their appeal from an Immigration Judge’s denial of asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252(a) and we deny the petitions for review. Because the BIA expressed no disagreement with any part of the IJ’s decision, but instead cited In re Burbano, 20 I. & N. Dec. 872, 874 (B.I.A. 1994), “we review the IJ’s decision as if it were the decision of the BIA.” Figueroa v. Mukasey, 543 F.3d 487, 491 (9th Cir. 2008). To reverse the IJ’s determination that Petitioners were not eligible for asylum and withholding, this panel “must find that the evidence not only supports that conclusion, but compels it.” Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir. 1997) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992)). To demonstrate past persecution, Petitioners have “the burden of establishing that (1) [the] treatment [rose] 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.” Bringas-Rodriguez v. Sessions, 850 F.3d 2 1051, 1062 (9th Cir. 2017) (en banc) (quoting Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir. 2010)). Here, substantial evidence supports the agency’s conclusion that Petitioners have not shown that the “persecution was committed by the government, or by forces that the government was unable or unwilling to control” for purposes of asylum. Id. Petitioners have not shown that the state-licensed nightclub security guards who attacked and beat them were state actors. Furthermore, while Petitioners’ allegations that the police officers failed to adequately investigate the nightclub assault right after it occurred are disturbing, the record shows that Dutch authorities thereafter took proactive steps to help Petitioners. Police officers interviewed Petitioners at the police station, showed them photographs to help identify the perpetrators, and told Petitioners they would investigate. Petitioners’ case was then filed in court by a public prosecutor and litigated for almost four years until the Dutch court reached its decision to dismiss the case. Petitioners’ contention that the police officers’ lack of diligence in investigating the case “ultimately ...

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