Ocnaliza Lesmana v. Eric Holder, Jr. ( 2011 )

Case: 10-60122 Document: 00511452094 Page: 1 Date Filed: 04/20/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 20, 2011
No. 10-60122
Summary Calendar Lyle W. Cayce
Clerk
OCNALIZA LESMANA,
Petitioner
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A099 335 237
Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Ocnaliza Lesmana, a native and citizen of Indonesia, has filed a petition
for review of the Board of Immigration Appeals’ (BIA) decision dismissing her
appeal of the Immigration Judge’s (IJ) denial of her application for asylum,
withholding of removal, and relief under the Convention Against Torture (CAT).
Lesmana contends that the BIA erred regarding the determination that she was
ineligible for withholding of removal and relief under the CAT. She does not
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
Case: 10-60122 Document: 00511452094 Page: 2 Date Filed: 04/20/2011
No. 10-60122
challenge the BIA’s determination that her application for asylum was time
barred.
We review the order of the BIA and will consider the underlying decision
of the IJ only if it had some impact upon the BIA’s decision. Ontunez-Tursios v.
Ashcroft, 303 F.3d 341, 348 (5th Cir. 2002). The BIA’s determination that an
alien is not eligible for withholding of removal or relief under the CAT is
reviewed under the substantial evidence standard. Chen v. Gonzales, 470 F.3d
1131, 1134 (5th Cir. 2006). Under that standard, this court will not reverse the
BIA’s decision unless the evidence not only supports a contrary conclusion but
compels it. Id.
Regarding withholding of removal, Lesmana argues that she demonstrated
a clear probability that she would be persecuted, because she is Chinese and
Christian, if she were removed to Indonesia. She does not argue that the BIA
erred in determining that she failed to establish past persecution and has thus
waived any such argument. See Calderon-Ontiveros v. INS, 809 F.2d 1050, 1052
(5th Cir. 1986). Lesmana’s testimony and the reports on Indonesia introduced
by her do not compel the conclusion that she more likely than not would be
singled out for persecution on account of her race or religion or that a pattern or
practice of persecution existed in Indonesia against Christians or ethnic Chinese
by the government or forces that the government is unable or unwilling to
control. See 8 C.F.R. § 1208.16(b)(2); Tesfamichael v. Gonzales, 469 F.3d 109,
113 (5th Cir. 2006); Eduard v. Ashcroft, 379 F.3d 182, 187-88 & n.4 (5th Cir.
2004). Additionally, although Lesmana argues that she was eligible for
withholding of removal based on the “disfavored group” analysis, we lack
jurisdiction to consider that issue because Lesmana failed to raise it before the
BIA. See Omari v. Holder, 562 F.3d 314, 317 (5th Cir. 2009) (recognizing that
failure to exhaust an issue before the BIA deprives this court of jurisdiction
pursuant to 8 U.S.C. § 1252(d)). Accordingly, that portion of her petition for
review is dismissed.
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Case: 10-60122 Document: 00511452094 Page: 3 Date Filed: 04/20/2011
No. 10-60122
With respect to the CAT, an applicant for protection under the CAT must
“establish that it is more likely than not that he or she would be tortured if
removed to the proposed country of removal.” § 208.16(c)(2); accord Chen, 470
F.3d at 1139. The record does not compel the conclusion that Lesmana more
than likely would be tortured if she were removed to Indonesia. See
§ 1208.16(c)(2). The BIA’s determination that she was not eligible for relief
under the CAT is supported by substantial evidence.
The petition for review is DISMISSED IN PART and DENIED IN PART.
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