                                                                           FILED
                             NOT FOR PUBLICATION                            MAR 01 2011

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




                             FOR THE NINTH CIRCUIT



ROSSAINE SHARMILA RAM; et al.,                   No. 07-71484

              Petitioners,                       Agency Nos.     A078-668-983
                                                            A078-668-984
  v.                                                        A078-668-985

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



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

                     Argued and Submitted February 18, 2011
                            San Francisco, California

Before: SCHROEDER and THOMAS, Circuit Judges, and ADELMAN, District
Judge.**

       Petitioner Rossaine Sharmila Ram, and derivatively her sons Edwin

Ramendra Chan and Rajeev Ravindra Chand, natives and citizens of Fiji and of

Indian ethnic origin, seek review of an agency decision denying Ram’s application


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
            The Honorable Lynn S. Adelman, District Judge for the U.S. District
Court for Eastern Wisconsin, Milwaukee, sitting by designation.
for asylum, withholding of removal, and protection under the Convention Against

Torture. We deny the petition in part, grant in part, and remand. Because the

parties are familiar with the factual and procedural history of this case, we need not

recount it here.

                                           I

      Substantial evidence supports the immigration judges’s (“IJ”) conclusion

that Ram did not establish past persecution on account of a protected ground. See

Singh v. INS, 134 F.3d 962, 969 (9th Cir. 1998) (repeated vandalism of

Indo-Fijian’s property, with no physical injury or threat of injury, did not rise to

the level of persecution); Prasad v. INS, 47 F.3d 336, 339–40 (9th Cir. 1995)

(concluding that an attack committed by a group of ethnic Fijians and the military,

detention by the police, physical abuse while in police custody, and coercive

questioning by the police regarding political affiliations were insufficient to

establish past persecution).

      However, neither the IJ nor the Board of Immigration Appeals (“BIA”),

which affirmed the IJ without an opinion, analyzed Ram’s claim for asylum under

the disfavored group analysis. See Sael v. Ashcroft, 386 F.3d 922, 925–30 (9th Cir.

2004); Singh v. INS, 94 F.3d 1353, 1358–60 (9th Cir. 1996). Because Ram raised

this issue before the IJ and the BIA, the agency was obligated to decide it. See


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Sagaydak v. Gonzales, 405 F.3d 1035, 1040 (9th Cir. 2005) (“[I]t goes without

saying that IJs and the BIA are not free to ignore arguments raised by a

petitioner.”). We therefore remand the question of whether Ram has a well-

founded fear of persecution to the BIA for its re-examination.

                                          II

      Because Ram has not shown past persecution under the criteria for asylum,

and because the record does not compel the conclusion that “it is more likely than

not that [s]he would be subject to persecution on one of the specified grounds”

should she be removed to Fiji, substantial evidence supports the IJ’s denial of

Ram’s claim under the “more stringent” criteria for withholding of removal

pursuant to 8 U.S.C. § 1231(b)(3). Al-Harbi v. INS, 242 F.3d 882, 888–89 (9th

Cir. 2001) (quotation omitted). Substantial evidence also supports the IJ’s

conclusion that Ram is not eligible for protection under the Convention Against

Torture. Neither in Ram’s asylum application nor in her testimony before the IJ

did she allege torture. Nor does any of the harassment and persecution she fears

rise to the level of the “‘severe pain or suffering,’” inflicted by government agents

for specified purposes, that this circuit’s precedent and INS regulations require of

CAT claims. Sinha v. Holder, 564 F.3d 1015, 1026 (9th Cir. 2009) (quoting 8

C.F.R. § 208.18(a)(1)).


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DENIED IN PART; GRANTED IN PART; REMANDED.




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