Tzafir v. Mukasey
Tzafir v. Mukasey
Opinion of the Court
MEMORANDUM
Marina Tzafir, a native of Uzbekistan, her husband Binyamin, a native of Georgia, and their three children (together “Tzafir”)
The IJ made adverse credibility findings that were not explicitly affirmed by the
We disagree with Tzafir’s contention that substantial evidence compels a finding that the harm she suffered rose to the level of past persecution. See Li v. Ashcroft, 356 F.3d 1153, 1158 (9th Cir. 2004) (en banc) (stating that “persecution” is “ ‘an extreme concept,’ marked by ‘the infliction of suffering or harm ... in a way regarded as offensive’ ”) (quoting Fisher v. INS, 79 F.3d 955, 961 (9th Cir. 1996) (en banc)). The evidence does not compel a finding that Tzafir has a well-founded fear of future persecution. See Nagoulko v. INS, 333 F.3d 1012, 1016 (9th Cir. 2003) (stating that a “ ‘well-founded fear of persecution’ must be both subjectively genuine and objectively reasonable”). We therefore uphold the BIA’s decision that Tzafir failed to establish eligibility for asylum. See Krotova, 416 F.3d at 1084 (stating that a denial of asylum is reviewed for substantial evidence and the petition may only be granted if the record compels a different result).
Because Tzafir failed to establish a well-founded fear of future persecution under asylum, she also failed to establish eligibility under the more stringent standard of withholding of removal. See Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006) (finding that the petitioner’s failure to establish eligibility under asylum meant that he also failed to meet the “heavier burden of proof’ to demonstrate eligibility for withholding of removal).
We reject Tzafir’s contention that the BIA erred in finding that her motion to reopen was untimely. See 8 C.F.R. § 1003.2(c)(2) (establishing that a petitioner has ninety days to file a motion to reopen before the BIA). Tzafir failed to demonstrate that she qualified for equitable tolling based on ineffective assistance of counsel. Hamoui v. Ashcroft, 389 F.3d 821, 826 (9th Cir. 2004) (stating that “[ijneffective assistance of counsel amounting to a due process violation permits untimely reopening”).
The evidence that Tzafir presented to the BIA with her motion to reopen fails to demonstrate that her claim was prejudiced.
Tzafir argues that the BIA failed to address the IJ’s denial of voluntary departure. Although we lack jurisdiction to review a grant or denial of voluntary departure, we have jurisdiction to review the BIA’s failure to address the issue. See 8 U.S.C. § 1229c(f); see also Sagaydak v. Gonzales, 405 F.3d 1035, 1039-40 (9th Cir. 2005) (reasoning that we have jurisdiction
In No. 05-75369, the petition for review is granted as to voluntary departure and remanded; otherwise, the petition is denied.
In No. 06-73230, the petition for review is denied.
DENIED in part, GRANTED in part, and REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. The claims of Marina Tzafir’s husband and children are derivative of her claim. See 8 U.S.C. § 1158(b)(3).
. Because the parties are familiar with the factual and procedural background, we do not repeat it here, except as necessary to aid in understanding this disposition.
. The government concedes that the BIA did not affirm the IJ's adverse credibility findings.
. Because Tzafir failed to demonstrate that her claim was prejudiced, we do not address the issue of prior counsel's competence.
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