NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JUAN LUIS VASQUEZ PENA and FERNANDO RIGOBERTO VASQUEZ PENA,

Petitioners,

v.
JEFFERSON B. SESSIONS III, Attorney General,
Respondent. No. 10

- 70395

Agency Nos. A096

- 360

- 117

A096

- 360

- 163 A097

- 351

- 683 A097

- 351

- 684 A097

- 351

- 685

MEMORANDUM *

On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted August 10, 2017 Pasadena, California
Before: CALLAHAN and OWENS, Circuit Judges, and GILLIAM, ** District Judge.

B rothers Juan Luis Vasquez Pena and Fernando Rigoberto Vasquez Pena

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The Honorable Haywood S. Gilliam, Jr., United States District Judge for the Northern District of California, sitting by designation. 

# FILED

MAR 21 2018

MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2 10

- 70395

( collectively, “Petitioners”) 1 petition for review of the Board of Immigration
Appeals ’s (“BIA”) denial of thei r applications for asylu m and withholding of

removal. Petitioners argue that the BIA erred in two respects: first, by denying

Petitioners ’ asylum claims because Petitioners failed to show “ extraordinary

circumstances ” that excuse d their untimely applicati ons; and second, by denying

Petitioners ’ claims for withholding of removal. We have jurisdiction under 8

U.S.C. § 1252, and DENY the petition.

1. S u bstantial evidence supports the BIA ’ s finding that Petitioners failed to

show “ extraordinary circumstances ” that would excuse their untimely asylum
applications under the statutory one

- year filing deadline

. Al Ramahi v. Holder , 725

F.3d 1133, 1134

- 35 (9th Cir. 2013) ; 8 U.S.C. §§ 1158(a)(2)(B)
, (D). Petitioners
identify as extraordinary circumstances their “ l ack of financial resources ” and
inability to speak English. T his c ourt has previously held that a lack of English

language proficiency is not an extraordinary circumstance. See Toj

- Culpatan v.

Holder , 612 F.3d 1088, 109 1 (9t h Cir. 2010)

. In addition, an individual ’ s financial
inability to retain legal counsel is not an “ extraordinary circumstance ” where “the

petitioners could have filed asylum applications themselves, sought pro bono
counsel or other assistance, or contacted immigration authorities.” Al Ramahi , 725

1 Petitioners clarified at oral argument that the claims of Luis Rigoberto Vasquez, Norma Patricia de Vasquez, and Luis A. Vasqu ez Barrientos are no longer before this c ourt.3 10

- 70395

F.3d at 1139

. The record supports that Petitioners could have taken any of those

steps , but failed to do so

.
2. “To qualify for withholding of removal, an alien must demonstrate that it

is more likely than not that he w ould be subject to p ersecution” on the basis of
race, religion, nationality, membership in a particular social group, or political
opin i on. Al

- Harbi v. I.N.S. , 242 F.3d 882, 888 (9th Cir. 2001) (internal quotations
and citations omitted); 8 U.S.C. § 1231(b)(3). Petitioners fail to make that
showing

. There is substantial eviden ce to support the BIA ’ s finding that
Petitioners did not face past persecution because the Guatemalan government was

not “ unable or unwilling ” to control Petitioners ’ alleged persecutors. See Afriyie v.

Holder
, 613 F.3d 924 , 930

- 32 (9th Cir. 2010) ; Madrigal v. Holder , 716 F.3d 499,

506 (9th Cir. 2013)

. 2 The BIA found that the Guatemalan government (1) arrested
a suspect connected to the events giving rise to Petitioners ’ alleged fears ; (2)
assigned a police detail for Petitioners’ protection while Petitioners resided in
Guatemala; and (3) placed Petitioners in a witness protection program when they

felt unsafe so that they could live in the United States. The BIA also noted th at

Petitioners ’ family m embers “ continue to reside in the same community in

Guatemala, and have not rece ived any threats or experienced harm ” in ten years

.

2 Because the c ourt finds that substantial evidence supports the BIA ’ s finding that Petitioners were not subject to past persecution , the c ourt need not determine whether Petitioners allege a cognizable social group. See Barajas

- Romero v. Lynch , 846 F.3d 351, 357 (9th Cir. 2017)

.4 10

- 70395

The record does not compel a conclusion contrary to that reached by the BIA

. See

Rizk v. Holder , 629 F.3d 1083, 1087 (9th Cir. 2011)

. To the extent that Petitioners

now argue that they independently fear future persecution, Petitioners waived that
argument by failing to raise it before the BIA

. S ee Barron v. Ashcroft , 358 F.3d
674, 678 (9th Cir. 2004)

.

DENIED

.