Jose Buscay v. ERIC H. HOLDER, Jr., Attorney General

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE BUSCAY,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 08-74072
Agency No. A079-528-821
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 11, 2013**
Before: FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.
Jose Buscay, a native and citizen of the Philippines, petitions pro se for
review of the Board of Immigration Appeals’ order dismissing his appeal from an
immigration judge’s decision denying his application for asylum, withholding of
removal, and protection under the Convention Against Torture (“CAT”). We have
FILED
FEB 20 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the
agency’s factual findings. Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir.
2006). We deny the petition for review.
Substantial evidence supports the agency’s finding that Buscay failed to
establish past persecution because his experiences of mistreatment due to his
homosexuality and female sexual identity, even considered cumulatively, did not
rise to the level of persecution. See Nagoulko v. INS, 333 F.3d 1012, 1016-18 (9th
Cir. 2003) (discrimination, harassment, and being fired from job did not compel
finding of past persecution); Gu v. Gonzales, 454 F.3d 1014, 1020 (9th Cir. 2006)
(single detention and beating that did not require medical treatment did not compel
past persecution finding). Further, as Buscay has not established past persecution,
he is not entitled to a presumption of future persecution, see Molina-Estrada v.
INS, 293 F.3d 1089, 1096 (9th Cir. 2002), or to humanitarian asylum, see 8 C.F.R.
§ 1208.13(b)(1)(iii). In addition, substantial evidence supports the agency’s
determination that Buscay did not establish a well-founded fear of persecution.
See Loho v. Mukasey, 531 F.3d 1016, 1017-18 (9th Cir. 2008) (history of willingly
returning to home country militates against finding of well-founded fear).
Accordingly, Buscay’s asylum claim fails.

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Because Buscay failed to meet the lower standard of proof for asylum, his
claim for withholding of removal necessarily fails. See Zehatye, 453 F.3d at 1190.
Finally, substantial evidence also supports the agency’s denial of CAT relief
because Buscay failed to establish it is more likely than not he would be tortured at
the instigation of or with the acquiescence of the government if returned to the
Philippines. See Silaya v. Mukasey, 524 F.3d 1066, 1073 (9th Cir. 2008).
PETITION FOR REVIEW DENIED.

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