Tin U, et al v. Holder, No. 06-72328 (9th Cir. 2011)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT JAN 31 2011 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS No. 06-72328 MOE TIN-U, Agency No. A095-185-230 Petitioner, v. MEMORANDUM* ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted November 2, 2010** Pasadena, California Before: RAWLINSON and M. SMITH, Circuit Judges, and JONES, District Judge.*** Petitioner Moe Tin-U, a native and citizen of Burma, seeks review of a Board of Immigration Appeals (BIA) order denying his application for asylum, * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Robert Clive Jones, United States District Judge for the District of Nevada, sitting by designation. withholding of removal, and protection under the Convention Against Torture (CAT). As the facts and procedural history are familiar to the parties, we do not recite them here except as necessary to explain our disposition. We affirm. We have jurisdiction to review the timeliness of Petitioner s application for asylum and the exceptional circumstances exception. Husyev v. Mukasey, 528 F.3d 1172, 1179 80 (9th Cir. 2008). Petitioner failed to file his application for asylum within one year after the date of his arrival in the United States. 8 U.S.C. § 1158(a)(2)(B). Petitioner did not show that he had extraordinary circumstances justifying his five-month delay in filing his petition for asylum upon expiration of his visa. See Toj-Culpatan v. Holder, 612 F.3d 1088, 1090 91 (9th Cir. 2010). The BIA did not err in ruling that Petitioner failed to show a clear probability that he would be subject to future persecution because he is gay or because he expressed his political opinions. See INS v. Stevic, 467 U.S. 407, 429 30 (1984). Further, although Petitioner may be arrested on his return for failing to maintain a passport, he did not prove that such arrest will more likely than not result in torture in contravention of the CAT. See Ahmed v. Keisler, 504 F.3d 1183, 1200 01 (9th Cir. 2007) (holding that even though petitioner suffered persecution by being arrested and beaten on account of his political opinions, such conduct did not rise to the level of torture). 2 PETITION DENIED. 3

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