                                                                           FILED
                             NOT FOR PUBLICATION                            JUL 22 2010

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




                             FOR THE NINTH CIRCUIT



EDUARDO O. STOCKER-MUNOZ,                        No. 05-70218

               Petitioner,                       Agency No. A26-019-086

  v.
                                                 MEMORANDUM *
MICHAEL B. MUKASEY, Attorney
General,

               Respondent.



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

                       Argued and Submitted October 22, 2008
                                Pasadena, California

                       Submission withdrawn October 22, 2008
                             Resubmitted July 20, 2010


Before:        W. FLETCHER and PAEZ, Circuit Judges, and DUFFY,**
               District Judge.




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The Honorable Kevin Thomas Duffy, United States District Judge for
the Southern District of New York, sitting by designation.
      Petitioner Eduardo Stocker-Munoz, a native and citizen of Chile, petitions

for review of an order of removal.

      The IJ found that Stocker-Munoz’s conviction for attempted bank fraud

under 18 U.S.C. § 1344 was an “aggravated felony” under INA § 101(a)(43)(U), 8

U.S.C. § 1101(a)(43)(U), because it constituted an attempt to commit a fraud or

deceit that would deprive the victim of more than $10,000. We review this

determination de novo. Ye v. INS, 214 F.3d 1128, 1131 (9th Cir. 2000). The IJ

also denied Stocker-Munoz’s claims for withholding of removal and relief under

the Convention Against Torture (“CAT”). We review this decision for substantial

evidence. Lanza v. Ashcroft, 389 F.3d 917, 933 (9th Cir. 2004).

      We apply the modified categorical approach to Stocker-Munoz’s conviction

for bank fraud to determine whether the conviction qualifies as an aggravated

felony. See Taylor v. United States, 495 U.S. 575, 602 (1990); Kawashima v.

Holder, 593 F.3d 979, 985 (9th Cir. 2010). The indictment charges that Stocker-

Munoz, with criminal intent, passed fraudulent checks with values much greater

than $10,000. The jury forms indicate that the jury found Stocker-Munoz “guilty

as charged.”

      The jury found Stocker-Munoz guilty of both elements of the generic

definition of attempt: (1) criminal intent and (2) an overt act that constituted a


                                           2
substantial step towards the completion of the fraud. See Ngaeth v. Mukasey, 545

F.3d 796, 801 (9th Cir. 2008). The IJ followed “fundamentally fair procedures” in

relying on the indictment and jury forms to conclude that Stocker-Munoz was

convicted of an attempt to defraud more than $10,000. See Kawashima v. Holder,

593 F.3d at 985 (quoting Nijhawan v. Holder, 129 S. Ct. 2294, 2302-03 (2009)).

The indictment demonstrates that the potential loss to the victim was greater than

$10,000, and potential loss can satisfy the intent standard under INA §

101(a)(43)(U). See Li v. Ashcroft, 389 F.3d 892, 897 (9th Cir. 2004).

      Substantial evidence supports the IJ’s determination that it is not more likely

than not that Stocker-Munoz would be persecuted or tortured if returned to Chile.

Stocker-Munoz is not entitled to a presumption of future persecution based on past

persecution, as he was never actually harmed or threatened personally when in

Chile and was not subject to the sort of extreme conduct we have previously found

to constitute past persecution. See, e.g., Al-Saher v. INS, 268 F.3d 1143, 1146 (9th

Cir. 2001); Singh v. INS, 134 F.3d 962, 968 (9th Cir. 1998); Kamla Prasad v. INS,

47 F.3d 336, 340 (9th Cir. 1995). Moreover, Stocker-Munoz presented no

evidence other than generalized statements that pro-Pinochet forces would

persecute or torture him if he returned to Chile. These statements are contradicted

by, among other things, the safety in which Stocker-Munoz’s mother and son


                                          3
voluntarily live in Chile, Lim v. INS, 224 F.3d 929, 935 (9th Cir. 2000), as well as

the State Department Country Report for Chile, which reports that Chile is a

multiparty democracy with a good record on human rights and which reports no

evidence of politically-motivated disappearances in Chile.

      Petition DENIED.




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