                              NOT FOR PUBLICATION

                       UNITED STATES COURT OF APPEALS                         FILED
                               FOR THE NINTH CIRCUIT                          NOV 16 2009

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

EVAN YOUSIF,                                      No. 05-70790

                Petitioner,                       Agency No. A096-227-365

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

                Respondent.


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

                              Submitted December 9, 2008**
                                  Pasadena, California

Before: PREGERSON, D.W. NELSON and THOMPSON, Circuit Judges.

        Petitioner Evan Yousif petitions for review of the BIA’s decision affirming

the Immigration Judge’s (“IJ”) denial of his applications for asylum, withholding

of removal, and protection under the Convention Against Torture (CAT). We deny

the petition.

         *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
         **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
      Where, as here, the BIA affirms the IJ’s decision based upon its agreement

with the IJ’s factual findings and application of legal standards, the court reviews

the decision of the IJ. Deloso v. Ashcroft, 393 F.3d 858, 863 (9th Cir. 2005). The

court reviews the IJ’s legal determinations de novo and reviews the agency’s

factual determinations for substantial evidence. Ochoa v. Gonzales, 406 F.3d

1166, 1169 (9th Cir. 2005).

      The IJ denied Petitioner’s application for asylum because, inter alia, even if

Petitioner was credible, he still failed to establish a well-founded fear of

persecution by non-governmental actors in Iraq, namely the Wahabi and Shi’a

sects of the Muslim religion. Persecution by non-governmental individuals may

serve as the basis for an asylum claim if the government is unwilling or unable to

control the persecution. See Mashiri v. Ashcroft, 383 F.3d 1112, 1119 (9th Cir.

2004). Evidence of whether victims reported persecution by non-governmental

actors to the relevant authorities is therefore relevant. See Ornelas-Chavez v.

Gonzales, 458 F.3d 1052, 1057–58 (9th Cir. 2006); Castro-Perez v. Gonzales, 409

F.3d 1069, 1072 (9th Cir. 2005). Reports to authorities are unnecessary “if . . . [an

applicant] can convincingly establish that doing so would have been futile or have

subjected him to further abuse.” Ornelas-Chavez, 458 F.3d at 1058.




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      The IJ found that Petitioner did not prove governmental authorities were

unwilling or unable to control the kind of violence that Petitioner alleged.

Substantial evidence supports this finding. Petitioner reported to the Iraqi police

that Wahabis had come into his store, broken some liquor bottles and threatened to

kill him if he did not close his business. Wahabis did not trouble Petitioner or his

business again before he left Iraq ten months later.

      The evidence also shows that petitioner’s family members failed to contact

the governmental authorities in response to alleged attacks by the Wahabi and

Shi’a. See id. at 1057-58. Petitioner failed to show that contacting such authorities

would have been futile or would have resulted in further harm. See id. at 1058.

Although Petitioner offered two articles in support of his claim, these articles do

not compel a different conclusion.

      Because Petitioner failed to demonstrate that he was eligible for asylum, he

did not satisfy the more stringent standard for withholding of removal. See

Mansour v. Ashcroft, 390 F.3d 667, 673 (9th Cir. 2004).




                                          3
      Because Petitioner failed to develop his argument that he is entitled to CAT

relief, it is waived. See Entm’t Research Group, Inc. v. Genesis Creative Group,

Inc., 122 F.3d 1211, 1217 (9th Cir. 1997).

      Finally, Petitioner’s argument that Liti v. Gonzales, 411 F.3d 631 (6th Cir.

2005), and Belishta v. Ashcroft, 378 F.3d 1078 (9th Cir. 2004), require remand of

this case is meritless. Both cases involve relief under 8 C.F.R. §

1208.13(b)(1)(iii)(B), which provides that, if an alien establishes past persecution

but the agency rebuts the presumption of a well-founded fear of future persecution,

the agency may grant asylum on the basis of the severity of the past persecution or

a reasonable possibility of future serious harm. This is inapplicable to Petitioner

because (1) Petitioner concedes that he did not suffer past persecution; (2)

Petitioner failed to exhaust his administrative remedies, and thus the Court lacks

jurisdiction to consider the regulation, see Belishta, 378 F.3d at 1079; and (3) the

Liti and Belishta courts remanded their cases or withheld their mandate only

because the regulation became effective before petitioners in those cases, unlike

Petitioner here, had filed their appeals to the BIA. Liti, 411 F.3d at 641; Belishta,

378 F.3d at 1079.

      PETITION DENIED



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                                                                                  FILED
Yousif v. Holder; No. 05-70790                                                    NOV 16 2009

                                                                            MOLLY C. DWYER, CLERK
PREGERSON, Circuit Judge, dissenting:                                        U.S. COURT OF APPEALS



      I dissent. Yousif established that he has a well-founded fear of future

persecution in Iraq on account of his Chaldean Christian religion. I would hold

him statutorily eligible for asylum and remand to the agency for consideration of

whether he merits a discretionary grant of asylum. See Fedunyak v. Gonzales, 477

F.3d 1126, 1131 (9th Cir. 2007).

      Because the BIA “reviewed the IJ’s decision and incorporated portions of it

as its own, we treat the incorporated parts of the IJ’s decision as the BIA’s.”

Molina-Estrada v. INS, 293 F.3d 1089, 1093 (9th Cir. 2002). The BIA did not

make an explicit adverse credibility finding or adopt the IJ’s credibility finding, so

we take Yousif’s statements as true. Kalubi v. Ashcroft, 364 F.3d 1134, 1137 (9th

Cir. 2004) (quoting Kataria v. INS, 232 F.3d 1107, 1114 (9th Cir. 2000))

(“Testimony must be accepted as true in the absence of an explicit adverse

credibility finding.”).

      The BIA affirmed the IJ’s decision on the basis that Yousif failed to

establish past persecution or a well-founded fear of future persecution on account

of a protected ground. “A ten percent chance that an applicant will be persecuted

in the future is enough to establish a well-founded fear of future persecution.”

Ahmed v. Keisler, 504 F.3d 1183, 1197 (9th Cir. 2007) (citing Sael v. Ashcroft, 386
F.3d 922, 925 (9th Cir. 2004)). Yousif established that he has a well-founded fear

of future persecution based on his Christian religion.

      Yousif is a Chaldean Catholic. Christians comprise less than five percent of

the population of Iraq, and hundreds of thousands of Chaldean Christians, one of

the oldest Christian communities, have fled their country. See Gulla v. Gonzales,

498 F.3d 911, 919 n.1 (9th Cir. 2007). While Yousif lived in Iraq, he operated a

liquor store. According to Yousif and the corroborating evidence he submitted,

only Christians were permitted to sell alcohol in Iraq. Yousif testified that six

Wahabi Muslim individuals came into his store, called him an “infidel,” smashed

bottles, and threatened him with death if he did not close his store. Yousif testified

that the Wahabi individuals viewed his liquor business as unacceptable and

“corrupting” to their Muslim faith. Yousif was not targeted as a liquor store

owner, but as a Christian “infidel” corrupting Muslims.

      Even after Yousif fled Iraq, threats of persecution against him persisted.

Wahabi individuals went to his family’s home and warned his family that they

would kill him if he returned. They also punched Yousif’s brother in the face

when he said he did not know where Yousif was located.

      Yousif’s family also suffered persecution on account of their religion by

Shi’a individuals. A Shi’a Muslim threatened Yousif’s sister in the street because

                                          2
she was wearing pants, and Shi’a Muslims forced their way into his family’s house

on four occasions and demanded that the family convert to Islam. The evidence

offered by Yousif compels the conclusion that he has a well-founded fear of future

persecution.

      Substantial evidence does not support the finding of the IJ and the BIA that

Yousif failed to show that government agents were unwilling or unable to control

the non-governmental persecutors. Yousif provided both country condition

evidence and individualized evidence of his own experiences demonstrating that

the government is unable or unwilling to control his persecutors. In particular,

Yousif submitted a 2004 Amnesty International Report which concluded that the

Coalition Forces were not able to provide adequate protection and assistance to

Iraqi civilians. The report also indicated that attacks on Iraqi police stations and on

Coalition Forces heightened the insecurity of Iraqi civilians. The same report

documented attacks which have occurred after the war on suspected alcohol

vendors by armed Shi’a groups.

      Yousif provided individualized evidence that government agents were either

unwilling or unable to control the persecution. Despite the fact that Yousif went to

the police and reported that the Wahabis had come to his store, the Wahabis

returned to his family’s home, threatened to kill him, and assaulted his brother.

                                          3
The police were either unwilling or unable to control the persecutors. Yousif also

made it clear that the police department would not protect him or his family against

the Shi’as’ aggressive attempts to convert his family to Islam.

      The evidence presented by Yousif compels the conclusion that he faces a

grave risk of persecution if returned to Iraq, and that the government forces are

either unwilling or unable to control the persecutors. I therefore dissent.




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