                                                                              FILED
                            NOT FOR PUBLICATION                                  FEB 13 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


BENITA STEENHOFF SNETHLAGE,                      No. 09-71920

              Petitioner,                        Agency No. A072-799-555

  v.
                                                 MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


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

                            Submitted February 10, 2014**
                                Stanford, California

Before: O’SCANNLAIN and MURGUIA, Circuit Judges, and MUELLER, District
Judge.***

       Benita Steenhoff-Snethlage, a native and citizen of South Africa, petitions

for review of the Board of Immigration Appeals’ (“BIA’s”) order denying her

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 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 Kimberly J. Mueller, District Judge for the U.S.
District Court for the Eastern District of California, sitting by designation.
motion to reopen her application for asylum, withholding of removal, and

protection under the Convention Against Torture. Snethlage initially sought relief

as a derivative petitioner in connection with her ex-husband’s application, which

the BIA dismissed. The BIA denied Snethlage’s motion to reopen on grounds that

she had neither established a prima facie case for relief nor submitted new material

evidence in support of her motion.

      The BIA properly denies a motion to reopen when “the movant has not

established a prima facie case for the underlying substantive relief sought,” when

“the movant has not introduced previously unavailable, material evidence,” or

when, even if the other requirements are met, the movant “would not be entitled to

the discretionary grant of relief.” Fernandez v. Gonzales, 439 F.3d 592, 599 (9th

Cir. 2006) (internal quotation marks omitted).

      The BIA correctly held that Ms. Snethlage has not established a “prima facie

case” for asylum. Her application, which turns on the testimony of her ex-husband,

does not show the required nexus between her husband’s asserted fear of

persecution and a statutorily protected ground. See Gormley v. Ashcroft, 364 F.3d

1172, 1177 (9th Cir. 2004); 8 U.S.C. § 1101(a)(42)(A). Nor has she explained

why she fears future persecution based on her ex-husband’s activity decades ago in

South Africa. Indeed, Ms. Snethlage’s ex-husband testified that he “[doesn’t] have


                                         2
a clue” whether any of the individuals he encountered while working for the South

African government have any role in that government today.

      Because Ms. Snethlage has not made out a prima facie case for asylum, she

also fails the more stringent test for withholding of removal. Farah v. Ashcroft,

348 F.3d 1153, 1156 (9th Cir. 2003).

      Nor has she made out a prima facie claim for relief under the Convention

Against Torture. She has not established any likelihood that she will be tortured if

she returns to South Africa, see 8 C.F.R. § 208.16(c)(2), or that any such torture

would occur “‘at the instigation of or with the consent or acquiescence of a public

official or other person acting in an official capacity.’” Zheng v. Ashcroft, 332

F.3d 1186, 1188 (9th Cir. 2003) (quoting 8 C.F.R. § 208.18(a)(1)).

      Finally, the BIA did not abuse its discretion in denying Ms. Snethlage’s

motion to reopen because the new evidence she offers—her newly single marital

status and resultant inability to receive derivative benefits tied to Mr. Snethlage’s

application—are not material to the likelihood that she would face future

persecution in South Africa. See Bolshakov v. I.N.S., 133 F.3d 1279, 1281–82 (9th

Cir. 1998).

      PETITION FOR REVIEW DENIED.




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