                                                                           FILED
                             NOT FOR PUBLICATION                            MAR 18 2010

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




                              FOR THE NINTH CIRCUIT



DARSHAN KAUR; et al.,                             No. 01-71948

              Petitioners,                        Agency Nos. A072-401-927
                                                             A072-401-928
  v.

IMMIGRATION AND                                   MEMORANDUM *
NATURALIZATION SERVICE,

              Respondent.



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

                             Submitted February 12, 2010 **
                               San Francisco, California

Before: HALL and McKEOWN, Circuit Judges, and ZILLY, *** Senior District
Judge.




        *
             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 Thomas S. Zilly, Senior United States District Judge
for the Western District of Washington, sitting by designation.
      An immigration judge (“IJ”) denied Petitioners’ applications for asylum and

withholding of removal. The Board of Immigration Appeals (“BIA”) affirmed.

This Court has jurisdiction pursuant to 8 U.S.C. § 1252, and we deny the petition

for review.

      Lead Petitioner Darshan Kaur alleges that her politically active brother was

arrested and killed by Punjabi police officers, and that the police threatened to

harm her and her family once they had alleged misconduct. Because of these

threats and additional threats by Sikh militants, Petitioners claim to fear

persecution if they return to India.

      As a preliminary matter, the BIA did not deny Petitioners due process by

concluding that they had not established past persecution. The IJ expressly found

that Kaur had not sufficiently established past persecution or a well-founded fear

of persecution, and the BIA affirmed on both of those grounds. A failure to

establish past persecution was therefore one basis for the denial of Petitioners’

claims, and they knew or should have known that the BIA could affirm, at least in

part, on that ground.

      Substantial evidence supports the BIA’s determination that Petitioners had

not suffered past persecution. Kaur testified that her family was “harassed” by

police officers on three or four occasions in order to convince them to withdraw

complaints over her brother’s death. She also testified that Sikh militants
attempted to recruit her family to avenge her brother’s death and that the militants

threatened harm if they refused. Such threats by themselves do not compel a

finding of past persecution. Lim v. INS, 224 F.3d 929, 936 (9th Cir. 2000).

      Substantial evidence also supports the BIA’s determination that Petitioners

did not have a well-founded fear of persecution by the police or Sikh militants on

account of political opinion. Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir. 1997).

Kaur’s brother was allegedly arrested because he was suspected of killing a police

officer and killed for trying to escape, and the police allegedly harassed Kaur’s

family following the lodging of a complaint over her brother’s death. Although

Kaur testified that she was a member of the All India Sikh Student Federation,

there is no evidence that the police were aware of her political activity or targeted

her for any reason other than to protect their own reputation. There is also no

evidence that the Sikh militants targeted Kaur’s family for any reason other than to

further their own agenda. See INS v. Elias-Zacarias, 502 U.S. 478, 482-483

(1992).

      Although Kaur’s testimony was deemed credible, it was not sufficiently

detailed or persuasive to compel a finding of a well-founded fear of future

persecution. See Ladha v. INS, 215 F.3d 889, 901 n.12 (9th Cir. 2000)

(“[S]ometimes the facts, credibly testified to and taken therefore to be true, will not

cover all elements of the asylum or withholding claim needed to justify relief.”).
Her description of the number and nature of the threats lodged against her was

extremely vague, and her asylum application is riddled with inconsistencies.

Petitioners claim a subjective fear of arrest and torture, but there is little evidence

that such fear is objectively reasonable.

      Lastly, we decline to remand to the BIA to consider Petitioners’ eligibility

for relief under the Convention Against Torture (“CAT”). After the IJ issued its

decision, but before the BIA ruled on Petitioners’ appeal, the United States

implemented Article 3 of CAT. See Pub. L. No. 105-277, Div. G., Title XXII, §

2242, 112 Stat. 2681, 2681-822 (1998). However, Petitioners never filed a motion

to reopen with the BIA or the IJ to consider their CAT claim. Khourassany v. INS,

208 F.3d 1096, 1100 (9th Cir. 2000).

      For the foregoing reasons, we DENY the petition for review.
