                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 18 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



AUGUSTO LIZARDO GONZALES-                        No. 05-76464
GANDINI,
                                                 Agency No. A072-531-862
              Petitioner,

  v.                                             MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                        Argued and Submitted June 8, 2010
                              Pasadena, California

Before: D.W. NELSON and GOULD, Circuit Judges, and DOWD, Senior District
Judge.**

       Augusto Lizardo Gonzales-Gandini (“Gonzales”), a native and citizen of

Peru, petitions for review of the Board of Immigration Appeals’ (“BIA”) dismissal

of his appeal of an Immigration Judge’s (“IJ”) decision denying his motion to

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
             The Honorable David D. Dowd, Jr., Senior United States District
Judge for the Northern District of Ohio, sitting by designation.
terminate removal proceedings and finding him removable. We have jurisdiction

under 8 U.S.C. § 1252, and we deny the petition.

      Gonzales argues that his motion to terminate removal proceedings should

have been granted because, when removal proceedings were initiated, he held

advance parole to pursue an adjustment of status application.1 We disagree. The

Attorney General has discretionary authority to grant parole, see 8 U.S.C.

§ 1182(d)(5)(A), and to terminate parole, see Hassan v. Chertoff, 593 F.3d 785,

788–90 (9th Cir. 2010) (per curiam).2 Gonzales was issued a Notice to Appear in

1998, which terminated his advance parole under the express terms of the

applicable regulation. See 8 C.F.R. § 212.5(e)(2)(i) (“When a charging document

is served on the alien, the charging document will constitute written notice of

termination of parole, unless otherwise specified.”).3 As such, Gonzales was

properly in removal proceedings as an arriving alien. See 8 U.S.C.

§ 1101(a)(13)(B) (“An alien who is paroled under section 1182(d)(5) of this title




      1
           We review this legal question de novo. See Aguilar Gonzalez v.
Mukasey, 534 F.3d 1204, 1208 (9th Cir. 2008).
      2
              Despite the discretionary nature of the decision to revoke parole,
because Gonzales’s petition for review raises questions of law, we retain
jurisdiction to review that determination. See 8 U.S.C. § 1252(a)(2)(D).
      3
             In 1998, 8 C.F.R. § 212.5(e)(2) was found at 8 C.F.R. § 212.5(d)(2).

                                          2
. . . shall not be considered to have been admitted.”). Gonzales’s contentions to the

contrary are not persuasive.4

      Gonzales also contends that the IJ erred in denying his asylum, withholding

of removal, and Convention Against Torture (“CAT”) claims. We conclude, to the

contrary, that the IJ’s denial of relief is supported by substantial evidence. See

Sinha v. Holder, 564 F.3d 1015, 1019–20, 1025 (9th Cir. 2009) (stating that we

review for substantial evidence the factual findings underlying the IJ’s

determination that a petitioner has not established eligibility for asylum,

withholding of removal, or CAT relief).

      To qualify for asylum based on persecution on account of a political opinion,

Gonzales must present specific facts establishing either (1) past persecution or (2) a

well-founded fear of future persecution, Kazlauskas v. INS, 46 F.3d 902, 905 (9th

Cir. 1995), and the persecution must be on account of the political opinion, see 8



      4
               Contrary to Gonzales’s contentions, the regulation permits
termination of parole on notice even if the purpose for which the advance parole
was granted—here, to pursue adjustment of status—has not been fulfilled. 8
C.F.R. § 212.5(e)(2)(i) (stating that parole may be terminated on notice “upon
accomplishment of the purpose for which parole was authorized or when in the
opinion of [certain enumerated officials], neither humanitarian reasons nor public
benefit warrants the continued presence of the alien in the United States”
(emphasis added)). Gonzales has not argued that the government has failed to
satisfy the regulatory requirements regarding humanitarian reasons or public
benefit.

                                           3
U.S.C. § 1101(a)(42)(A). Accepting Gonzales’s testimony, as we must because the

IJ found him credible, Gonzales does not satisfy this standard. Gonzales did not

show that the Shining Path’s recruitment of him was motivated by his political

views rather than by his popularity and his family’s wealth, and the IJ’s findings

that Gonzales had no actual knowledge that his assailant was a member of the

Shining Path or that he was shot at for not joining the Shining Path are supported

by substantial evidence. See INS v. Elias-Zacarias, 502 U.S. 478, 483–84 (1992).

Gonzales also has not presented evidence “so compelling that no reasonable

factfinder could fail to find the requisite fear of [future] persecution” if he returns

to Peru. Id. at 484. His family’s prior problems as crime victims were properly

accorded little or no weight as he did not establish that the Shining Path was

targeting his family on account of any political views. And the reasonableness of

Gonzales’s fear of returning to Peru is undermined by his family’s present safety in

Peru, his return trips to Peru, and the remoteness in time of the encounters with the

Shining Path. See Canales-Vargas v. Gonzales, 441 F.3d 739, 746 (9th Cir. 2006)

(“[T]he age of the threats that [the petitioner] received are relevant to our

evaluation of the reasonableness of [the petitioner’s] fear.”); Hakeem v. INS, 273

F.3d 812, 816 (9th Cir. 2001) (“An applicant’s claim of persecution upon return is

weakened, even undercut, when similarly-situated family members continue to live


                                            4
in the country without incident, or when the applicant has returned to the country

without incident.” (citations omitted)).

      Because Gonzales has not demonstrated eligibility for asylum, he does not

meet the higher standard of proof for withholding of removal. See Farah v.

Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003). Finally, even if it is possible that

Gonzales will be harassed or mistreated if he returns to Peru, that is insufficient to

establish the likelihood that he will upon return suffer the extreme cruelty or

inhuman treatment required for CAT relief. See 8 C.F.R. § 208.18(a)(2).5

      DENIED.




      5
             Although Gonzales argues that the IJ erred in denying his request for
voluntary departure, the BIA determined that Gonzales was ineligible for voluntary
departure on a different ground—that he had not been continuously present in the
United States for one year. Gonzales does not challenge the BIA’s reasoning and
any argument that the BIA erred is therefore waived.

                                           5
