Fariba Amiri v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FARIBA AMIRI,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 11-71989
Agency No. A095-635-533
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 6, 2016**
Pasadena, California
Before: FERNANDEZ, CLIFTON, and FRIEDLAND, Circuit Judges.
Petitioner Fariba Amiri, a native of Iran and citizen of the United Kingdom,
petitions for review of the Board of Immigration Appeals’ order dismissing her
appeal of an Immigration Judge’s denial of her application for asylum, withholding
FILED
JUL 22 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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of removal, and relief under the Convention Against Torture (CAT). We have
jurisdiction under 8 U.S.C. § 1252(a), and we deny the petition for review.
Generally, “[o]ur review is limited to the BIA’s decision where the BIA
conducts its own review of the evidence and law.” Vitug v. Holder, 723 F.3d 1056,
1062 (9th Cir. 2013). However, where, as here, the BIA’s “phrasing seems in part
to suggest that it did conduct an independent review of the record, but the BIA’s
analysis on the relevant issues is confined to a simple statement of a conclusion,
we also look to the IJ’s oral decision as a guide to what lay behind the BIA’s
conclusion.” Bingxu Jin v. Holder, 748 F.3d 959, 964 (9th Cir. 2014) (quoting
Shrestha v. Holder, 590 F.3d 1034, 1039 (9th Cir. 2010)). We review the BIA’s
legal conclusions de novo and its factual determinations, “including its finding of
whether an applicant has demonstrated a ‘well-founded fear of persecution,’” for
substantial evidence. Ghaly v. INS, 58 F.3d 1425, 1429 (9th Cir. 1995).
To establish that she has suffered past persecution and is therefore eligible
for asylum, Amiri must demonstrate: “(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.” Afriyie v. Holder, 613 F.3d 924, 931 (9th
Cir. 2010). Amiri, who was sexually assaulted and later abducted for several hours
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by a man she met through a contact at the Iranian embassy, argues that she was
targeted as a result of her Iranian ethnicity and her status as a westernized Iranian
woman in a romantic relationship with an American man. She also argues that the
British police, who did not solve the crime, were unable or unwilling to protect her.
Amiri has provided no evidence beyond speculation that her attack or
abduction was motivated by a protected ground. Thus, at most, it is “simply not
clear” whether Amiri’s alleged protected status “caused [the attacker] to initiate
the[] attack.” Parussimova v. Mukasey, 555 F.3d 734, 742 (9th Cir. 2009). While
we are sympathetic to her circumstances, there is nothing in the record that
“compels the conclusion” that either Amiri’s ethnicity or her social status was “a
central motivating reason for the attack.” Id. Because Amiri has not met her
burden to show that she was targeted based on a protected ground, we need not
reach the issue of whether westernized Iranian women in a romantic relationship
with an American man may constitute a “particular social group.” See
Henriquez-Rivas v. Holder, 707 F.3d 1081, 1083 (9th Cir. 2013) (en banc).
We also agree with the BIA that Amiri did not show that the British police
were “unable or unwilling” to control the private parties responsible for Amiri’s
assault and abduction. See Afriyie, 613 F.3d at 927. “[W]hen an applicant
attempts to report persecution to the police or request protection from them, the
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authorities’ response (or lack thereof) to such requests may provide powerful
evidence with respect to the government’s willingness or ability to protect the
requestor.” Id. at 931. Here, both Amiri’s testimony and the documentary
evidence suggest that the British police launched a serious investigation into
Amiri’s assault, including forensic testing of her clothes and electronics, multiple
interviews with Amiri, and attempts to pull CCTV recordings from the area in
which the assault took place. Moreover, Amiri ceased contact with the police two
weeks after the initial assault and only three days after her abduction, hampering
the investigation. Under these circumstances the “evidence simply does not
compel the conclusion that the [British] government was unable or unwilling to
control” the man who assaulted and abducted Amiri. Nahrvani v. Gonzales, 399
F.3d 1148, 1154 (9th Cir. 2005).
Amiri also has not demonstrated a reasonable likelihood of future
persecution. “If an applicant does not assert past persecution or an IJ does not find
that an applicant suffered past persecution, an applicant fearing persecution by
private parties will have the burden of showing a well-founded fear of future
persecution and that relocation would be unreasonable.” Afriye, 613 F.3d at 936
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n.8. Here, the IJ found that Amiri has not demonstrated past persecution,1 and
Amiri did not present any additional evidence suggesting that the facts underlying
this determination would be different upon her return to the United Kingdom.
Finally, Amiri cannot succeed on either her withholding of removal claim or
her CAT claim. Because she was not able to establish eligibility for asylum, she is
unable to satisfy the higher standard for withholding of removal. See Lanza v.
Ashcroft, 389 F.3d 917, 933 (9th Cir. 2004). Meanwhile, CAT provides relief for
petitioners who are able to show that they are more likely than not to be tortured in
the country of removal “by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an official capacity.”
Madrigal v. Holder, 716 F.3d 499, 508 (9th Cir. 2013) (quoting 8 C.F.R.
§ 208.18(a)(1)). As discussed above, Amiri did not meet her burden to show that
the British government had been unable or unwilling to protect her against
persecution. The same facts relevant to that analysis provide substantial evidence
1 Amiri argued on appeal that the IJ found that she had suffered from past
persecution, thus entitling her to a rebuttable presumption of a well-founded fear of
future persecution pursuant to 8 C.F.R. § 1208.13(b)(1). She misunderstands the
IJ’s findings. The IJ determined that the attack against Amiri, combined with the
abduction and harassment she suffered, “rose to the level of persecution.”
However, the IJ found that she had not suffered from persecution as defined by
§ 1208.13(b)(1) because she had not demonstrated that the assault was motivated
by a protected status or that the British government was unable or unwilling to help
her.
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for the BIA’s conclusion that Amiri had not met her burden to show a sufficient
governmental involvement in or acquiescence to torture under CAT. See, e.g., Del
Cid Marroquin v. Lynch, 2016 WL 2893386, at *4 (9th Cir. May 18, 2016);
Garcia-Milian v. Holder, 755 F.3d 1026, 1034 (9th Cir. 2014).
PETITION FOR REVIEW DENIED.
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