                                                                           FILED
                             NOT FOR PUBLICATION                            JUL 21 2011

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




                             FOR THE NINTH CIRCUIT



ROMEL HOYRI-HYRI,                                No. 08-75180

               Petitioner,                       Agency No. A098-261-560

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

               Respondent.



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

                             Submitted July 12, 2011 **

Before:        SCHROEDER, ALARCÓN, and LEAVY, Circuit Judges.

       Romel Hoyri-Hyri, a native and citizen of Venezuela, petitions for review of

the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an

immigration judge’s decision denying his application for asylum, withholding of

removal, and protection under the Convention Against Torture (“CAT”). We have


          *
             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).
jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law and for

substantial evidence factual findings. Husyev v. Mukasey, 528 F.3d 1172, 1177

(9th Cir. 2008). We deny the petition for review.

      The record does not compel the conclusion that Hoyri-Hyri established

changed or extraordinary circumstances excusing his untimely filed application.

See 8 C.F.R. §§ 1208.4(a)(4), (5). Accordingly, his asylum claim, including his

claim for humanitarian asylum, fails.

      Hoyri-Hyri contends he suffered past persecution and fears future

persecution on the basis of his Arabic ethnicity and membership in a social group

of ethnic small business owners. Substantial evidence supports the BIA’s

determination that Hoyri-Hyri did not establish that the harm he suffered or fears,

based on the threats and violence he and his family experienced, is on account of a

protected ground. See Parussimova v. Mukasey, 555 F.3d 734, 740 (9th Cir. 2009)

(“[t]he Real ID Act requires that a protected ground represent ‘one central reason’

for an asylum applicant’s persecution”); Bolshakov v. INS, 133 F.3d 1279, 1281

(9th Cir. 1998) (evidence at most showed that petitioners who were attacked and

threatened inside and outside their shop by men demanding money were victims of

criminal activity); Gormley v. Ashcroft; 364 F.3d 1172, 1177 (9th Cir. 2004)

(random criminal acts that bore no nexus to a protected ground). In light of this


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conclusion, Hoyri-Hyri’s contention that he is entitled to a presumption of future

persecution fails. See Molina-Estrada v. INS, 293 F.3d 1089, 1096 (9th Cir. 2002)

(when the petitioner has not established past persecution, there is no presumption

of future persecution). Further, the record does not compel the conclusion that

there is a pattern or practice of persecution against ethnic small business owners in

Venezuela. See Wakkary v. Holder, 558 F.3d 1049, 1060-62 (9th Cir. 2009).

Accordingly, we reject Hoyri-Hyri’s withholding of removal claim.

      Finally, substantial evidence supports the agency’s denial of CAT relief

because Horyi-Hyri failed to establish it is more likely than not that he would be

tortured if returned to Venezuela. See Wakkary, 558 F.3d at 1067-68.

      PETITION FOR REVIEW DENIED.




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