                                                                            FILED
                             NOT FOR PUBLICATION                             JUL 18 2012

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




                             FOR THE NINTH CIRCUIT



DUMITRU ALEXANDRU BELEA and                      No. 10-71512
SEMIDA ELENA VARVAS,
                                                 Agency Nos. A099-577-668,
              Petitioners,                       A099-577-669

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

              Respondent.



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

                        Argued and Submitted July 9, 2012
                              Seattle, Washington

Before: REINHARDT, KLEINFELD, and M. SMITH, Circuit Judges.

       Petitioners Dumitru Belea and Semida Varvas, husband and wife, and

natives and citizens of Romania, petition for review of the Board of Immigration

Appeals’ (BIA) final order denying their applications for asylum, withholding of

removal, and relief under the Convention Against Torture (CAT). Because the



       *     This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
parties are familiar with the factual and procedural history of this case, we repeat

only those facts necessary to resolve the issues raised on appeal. We have

jurisdiction pursuant to 8 U.S.C. § 1252, and we deny the petition for review.

      As a preliminary matter, Petitioners raise two procedural challenges to the

BIA decision. First, Petitioners contend that the immigration judge (IJ) did not

make a finding as to their claim of well-founded fear of future persecution, and that

the BIA therefore erred in adopting a “nonexistent” finding. A review of the IJ

decision, however, clearly shows that, although the IJ never used the exact words

“well-founded fear of future persecution,” he did consider and make a finding on

the asylum claim. Second, Petitioners argue that the IJ did not make a

determination as to their withholding of removal claim, and that the BIA engaged

in improper factfinding on appeal when it denied that claim, in violation of 8

C.F.R. § 1003.1. Although the IJ did not explicitly refer to Petitioners’

withholding of removal claim in his decision, he denied “the application for the

other forms of relief” which necessarily included the withholding claim.

Moreover, the BIA did not engage in factfinding on appeal; instead, it held that

because Petitioners failed to satisfy the standard for asylum, they necessarily failed

to satisfy the more demanding standard for withholding of removal. This is a legal




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determination, not a finding of fact. Accordingly, we reject Petitioners’ procedural

challenges to the BIA decision.

      Even if we assume, without deciding, that the asylum applications were

timely, the BIA’s conclusion that Petitioners have failed to establish that they face

a “well-founded fear of persecution on account of race, religion, nationality,

membership in a particular social group, or political opinion” is supported by

substantial evidence. 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1). An asylum

applicant bears the burden of proof to show that: (1) the treatment rises to the level

of persecution; (2) the persecution was on account of one or more protected

grounds; and (3) the persecution was committed by the government, or by forces

that the government was unable or unwilling to control. Baghdasaryan v. Holder,

592 F.3d 1018, 1023 (9th Cir. 2010). Petitioners concede that they have not faced

past persecution, but contend that they have a well-founded fear of future

persecution based on their participation in a police investigation that resulted in the

criminal prosecution of Constantin Durbalau.

      Petitioners’ asylum claims fail for at least two reasons. First, Petitioners

have not put forth any “credible, direct, and specific evidence” that would support

a “reasonable fear of persecution” with regards to Durbalau. See Ladha v. INS,

215 F.3d 889, 897 (9th Cir. 2000), overruled on other grounds by Abebe v.


                                           3
Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (en banc) (per curiam). Constantin

Durbalau pled guilty to his charged offense. Petitioners have not put forth any

specific evidence that Durbalau know their identity as informants or would target

them for persecution because of their actions. Second, Petitioners have not shown

that any potential persecution would be committed by the government or by forces

that the government would be unwilling or unable to control. See Avetova-Elisseva

v. INS, 213 F.3d 1192, 1196 (9th Cir. 2000). Petitioners’ speculative theory that

the government sanctioned Durbalau’s visa business simply because of how

smooth the process was for them is insufficient to meet their burden of proof.

Petitioners additionally fail to put forth any specific evidence that the government

would be unable to control persecution by Durbalau, or by any similar visa rings.

      Because Petitioners fail to meet the lower burden of proof for asylum, their

withholding of removal claims necessarily fail. See Farah v. Ashcroft, 348 F.3d

1153, 1156 (9th Cir. 2003).

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

because Petitioners failed to establish it is more likely than not that they would be

tortured by or with the acquiescence of the government if returned to Romania. See

Silaya v. Mukasey, 524 F.3d 1066, 1073 (9th Cir. 2008).

      PETITION DENIED.


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