NOT FOR PUBLICATION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.

Brothers 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, CLERK

U.S. COURT OF APPEALS
2 10-70395 

(collectively, “Petitioners”)1 petition for review of the Board of Immigration 

Appeals’s (“BIA”) denial of their applications for asylum 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 excused their untimely applications; and second, by denying 

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

U.S.C. § 1252, and DENY the petition.

1. Substantial 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 “lack of financial resources” and 

inability to speak English. This court has previously held that a lack of Englishlanguage proficiency is not an extraordinary circumstance. See Toj-Culpatan v. 

Holder, 612 F.3d 1088, 1091 (9th 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. Vasquez Barrientos are no longer before 

this court. 
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 would be subject to persecution” on the basis of 

race, religion, nationality, membership in a particular social group, or political 

opinion. 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 evidence 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 that 

Petitioners’ family members “continue to reside in the same community in 

Guatemala, and have not received any threats or experienced harm” in ten years. 

 

2 Because the court finds that substantial evidence supports the BIA’s finding that 

Petitioners were not subject to past persecution, the court 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. See Barron v. Ashcroft, 358 F.3d 

674, 678 (9th Cir. 2004).

DENIED.