NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FARZAD BAKTASH,

Petitioner,

v. WILLIAM P. BARR, Attorney General,

Respondent. No. 17

- 71150 Agency No. A089

- 725

- 763

MEMORANDUM *

SOURI MAZLOUM; et al.,

Petitioners,

v. WILLIAM P. BARR, Attorney General,

Respondent. No. 17

- 71151 Agency Nos. A089

- 796

- 691

A089

- 796

- 692 A026

- 512

- 672

On Petition for Review of an Order of the Board of Immig ration 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. 

# FILED

MAR 26 2020
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

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 expresse d no disagreement with any part of the IJ’s decision, but instead cite d 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 ev idence 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 unabl e or unwilling to control.” Bringas

- Rodriguez v. Sessions , 850 F.3d3

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
h ave 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 show n 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 th at Dutch
authorities thereafter took proactive steps to help Petitioners

. P olice 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 officer s’ lack of diligen ce in investigati ng the case

“ ultimately resulted in the case being dismissed in Court” is unsubstantiated.
A bsent more evidence , d ismissal of their case after an investigation does not prov e that the Dutch government was unable or unwilling to help Petitioners

. Additional ly, t he agency reasonably found that “the length of time it took for the criminal case to be resolved may actually undercut the [Baktash family’s] claim , ”4

as the case was not rushed or closed prematurely. Thus , on this record, a reasonable adjudicator would not be compelled to conclude that Petitioners met their burden of establishing past persecution.
S ubstantial evidence also supports the IJ’s determination that Petitioners
were unable to meet their burden of demonstrating a “well

- founded fear of [future] persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” Elias

- Zacarias , 502 U.S. at 481 (quoting 8 U.S.C. § 1101(a)(42)(A) ) ; 8 C.F.R. § 1208.13(b)(2)

. B ecause the record does not compel a finding that Petitioners have a reasonable fear of persecution by either the Dutch g overnment or forces that it is unwilling or unable to control, Petitioners are ineligible for asylum

. Avetova

- Elisseva v. IN S , 213 F.3d 1192, 1196 (9th Cir. 2000) ; s ee also Nahrvani v. Gonzalez , 399 F.3d 1148, 1154 (9th Cir. 2005) ( finding speculative claim of future persecution insufficient to establish well

founded fear)

. Because Petitioners have not met their burden for asylum eligibility , they
likewise fail to meet the higher standard of proof for withholding of removal.
Fisher v. INS , 79 F.3d 955, 961 (9th Cir. 1996) (en ban c ). Furthermore, because Petitioners did not contest the IJ’s denial of their applic ation for CAT relief before
the BIA , and did not challenge the IJ’s denial in their opening brief before this
Court , th eir CAT claim is both unexhausted , see 8 U.S.C. § 1252(d)(1) ; Barron v.5

Ashcroft , 358 F.3d 674, 677

- 78 (9th Cir. 2004) , and waived , s ee Martinez

- Serrano
v. INS , 94 F.3d 1256, 1259 (9th Cir. 1996)

. PETITION FOR REVIEW DENIED.