                                                                           FILED
                              NOT FOR PUBLICATION                           DEC 30 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S . CO U RT OF AP PE A LS




                              FOR THE NINTH CIRCUIT



ANTONIO TIMOTHY VASCONC LEE;                     No. 10-71265
FERNANDA LEE; KEREN HAPPUCH
M. VASC LEE; BEN HUR M.                          Agency Nos. A099-776-787
VASCONCE LEE,                                                A099-776-788
                                                             A099-776-789
              Petitioners,                                   A099-776-790

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

              Respondent.




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

                             Submitted November 16, 2011**
                                    Portland, Oregon


Before: FISHER, PAEZ, and CLIFTON, Circuit Judges.




        *
             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).
       Antonio T. V. Lee petitions for review of the decision of the Board of

Immigration Appeals dismissing his appeal from an order of removal. Because

substantial evidence supports the BIA's determination that Lee's political opinion

was not a central reason for his persecution, we deny the petition.

       Lee asserted that he was persecuted on account of political opinion because

he exposed police corruption in a civil lawsuit. The BIA did not deny that Lee

might have had a political opinion, but it concluded that 'the record does not

support a finding that the respondent's political opinion (whether imputed or

direct) or any other protected ground was at least one central reason behind the

incidents at issue.' Under the REAL ID Act, Lee was required to demonstrate that

his political opinion was 'at least one central reason' behind the persecution. 8

U.S.C. y 1158(b)(1)(B)(i) (2006). Our precedent based on the statute prior to its

amendment by the REAL ID Act, including cases cited by Lee, has been

superseded. Instead, Lee had to meet the standard of showing that his persecutors

'would not have harmed the applicant if the protected trait did not exist.' Matter

of N-M-, 25 I. & N. Dec. 526, 2011 WL 2297860, at *5 (BIA 2011). He did not do

so in this case.

       Substantial evidence in the record supported the BIA's conclusion that Lee's

persecution was not on account of a political opinion. Lee's persecution on


                                          2
account of resistance to aberrational criminal conduct by the police does not

qualify as persecution on account of a political opinion. Id. ('Where the alien

threatens to expose the corrupt acts of rogue officials acting without the support of

the governing regime, it seems less liµely that the act would be perceived as

politically motivated or politically threatening.'). In this case, the BIA could

conclude that Lee's resistance to a small group of corrupt policemen did not

constitute the type of action that would be perceived as opposition toward ''a

governing institution.'' Id. (quoting Grava v. INS, 205 F.3d 1177, 1181 (9th Cir.

2000)). Lee failed to demonstrate that bribery was systemic to the government

institution; therefore, the BIA could conclude that his exposure of corrupt police

acts was perceived as opposition to a few corrupt officials instead of opposition to

the political system. See Sagaydaµ v. Gonzales, 405 F.3d 1035, 1044 (9th Cir.

2005) (refusing bribes constituted political opinion because alien's actions were

tied to government political and economic reforms); Desir v. Ilchert, 840 F.2d 723,

727 (9th Cir. 1988) (resisting bribes constituted political opinion because

government was a µleptocracy from the highest to lowest level).

      Lee's testimony also demonstrated that the police persecuted him for non-

protected reasons. For the 1997 incident, Lee failed to show that the beating was

on account of a political opinion rather than for retaliation for his resistance to the


                                            3
bribe. See INS v. Elias-Zacarias, 502 U.S. 478, 481-84 (1992) (alien who resisted

recruitment by guerilla group failed to show that guerillas persecuted him for his

political opinion rather than for his refusal to join the group). Regarding the

incident in 1999, Lee's testimony demonstrated that the police beat Lee because of

accusations that Lee tried to use armed men to taµe over a car shop, not because of

Lee's testimony at a civil lawsuit. In the 2003 incident, the police did not give a

reason for the beating. Because the record supports a finding that the persecutors'

motivations could have been based on non-protected reasons in the two prior

incidents, the BIA could reasonably conclude that political opinion was not the

central reason behind the 2003 incident. Persecution for ambiguous reasons does

not constitute persecution on account of political opinion merely because the

persecution was subsequent in time to a political act. See Kozulin v. INS, 218 F.3d

1112, 1116-17 (9th Cir. 2000) (anonymous beating three weeµs after the supposed

political act did not establish persecution on account of political opinion).1




      1
        In Kozulin, the court found that an interim period of three weeµs between
the 'political act' and the anonymous attacµ weaµened the connection between an
expression of political opinion and the persecution. 218 F.3d at 1117. Lee's case
has a weaµer connection than Kozulin because the record indicates that the civil
lawsuit decision was made in April 2002, over a year before the 2003 incident with
the police. AR 457-67. Under these circumstances, the facts do not compel a
finding that the 2003 incident was directly tied to Lee's testimony at the lawsuit.

                                           4
      Lee's own testimony suggested that the police may have persecuted him for

bribes and accusations about trying to taµe over a car shop even if Lee had not

testified at the civil lawsuit. Under the substantial evidence standard applicable

here, the BIA decision may be set aside only if 'Petitioner presented evidence 'so

compelling that no reasonable fact finder could find' that Petitioner has not

established eligibility for asylum.' Singh v. INS, 134 F.3d 962, 966 (9th Cir.

1998) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992)). Because Lee

failed to show an explicit connection between the beatings and his supposed

political opinion and testified himself that the persecution occurred for non-

protected reasons, the record does not compel a conclusion contrary to the BIA

decision.

      Because Lee failed to meet the requirements for asylum, he necessarily fails

to meet the higher standard for withholding of removal. See Ayala v. Holder, 640

F.3d 1095, 1098 (9th Cir. 2011) (per curiam); INS v. Stevic, 467 U.S. 407, 425

(1984). Additionally, Lee failed to argue against the BIA's decision on the

Convention Against Torture claim in his brief, so the argument has been waived.

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

      PETITION FOR REVIEW DENIED.




                                          5
                                                                            FILED
Lee v. Holder, 10-71265                                                      DEC 30 2011

                                                                         MOLLY C. DWYER, CLERK
PAEZ, Circuit Judge, concurring in part and dissenting in part:           U.S . CO U RT OF AP PE A LS




      I respectfully dissent from the denial of the petition with respect to Lee's

claims for asylum and withholding of removal. Neither the immigration judge (IJ)

nor the Board of Immigration Appeals (BIA) had the benefit of the recent

precedential BIA decision in Matter of N-M-, 25 I. & N. Dec. 526 (June 9, 2011),

when they held that the persecution that Lee suffered at the hands of the local

police force was not on account of his political opinion.

      Matter of N-M- discusses the heightened nexus requirement imposed by the

REAL ID Act, Pub. L. No. 109-13, Div. B., y 101(h)(2), 119 Stat. 231, 305 (May

11, 2005), and its application in asylum and withholding of removal cases where

the basis for the protected activity is whistleblowing against corrupt government

officials. The majority is correct that under the REAL ID Act's 'one central

reason' standard, the 'alien must demonstrate that the persecutor would not have

harmed the applicant if the protected trait did not exist.' Matter of N-M-, 25 I. &

N. Dec. at 531.

      Matter of N-M- provides more, however. The opinion provides three factors

for an IJ to consider when determining, as a matter of fact, a persecutor's actual

motive: (1) 'whether and to what extent the alien engaged in activities that could


                                          1
be perceived as expressions of anticorruption beliefs,' (2) 'any direct or

circumstantial evidence that the alleged persecutor was motivated by the alien's

perceived or actual anticorruption beliefs,' and (3) 'evidence regarding the

pervasiveness of government corruption, as well as whether there are direct ties

between the corrupt elements and higher level officials.' Id. at 532-33.

      Here, the BIA only discussed the first of those factors, Lee's own activities.

The BIA only noted that Lee 'was not involved in politics,' 'only made four

anonymous telephone calls,' 'did not rail in public against corruption,' and 'did

not publicly expose corruption, but rather criticized individuals whose corruption

was aberrational.' The Board did not discuss the direct and circumstantial

evidence that the police were motivated by Lee's activities, or the pervasiveness of

corruption in the Brazilian police forces.

      Because neither the BIA nor the IJ performed a complete analysis of Lee's

claim for asylum or withholding of removal on the basis of his whistleblowing

against corrupt government officials, I would remand this case to the agency for

reconsideration in light of Matter of N-M-. I therefore respectfully dissent from

this part of the majority's disposition.

      I concur, however, in the determination that Lee waived his Convention

Against Torture claim by failing to argue it in his brief to this court.


                                             2
