Heang Ea v. Holder , 358 F. App'x 837 ( 2009 )

FILED
NOT FOR PUBLICATION DEC 23 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
HARDIAL SINGH; RAJBIR SINGH, Nos. 06-72831
06-75541
Petitioners,
Agency Nos. A095-630-059
v. A095-630-060
ERIC H. HOLDER Jr., Attorney General,
MEMORANDUM *
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 15, 2009 **
Before: GOODWIN, WALLACE, and FISHER, Circuit Judges.
In these consolidated cases, Hardial Singh and his son, Rajbir Singh, natives
and citizens of Indonesia, petition for review of the Board of Immigration Appeals’
(“BIA”) order dismissing their appeal from an immigration judge’s decision
*
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).
JT/Research
denying their application for asylum and withholding of removal (No. 06-72831),
and the BIA’s order denying Rajbir Singh’s motion to reopen removal proceedings
(No. 06-75541). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for
substantial evidence the agency’s factual findings, Wakkary v. Holder, 558 F.3d
1049, 1056 (9th Cir. 2009), we review for abuse of discretion the denial of a
motion to reopen, and we review de novo ineffective assistance of counsel claims,
Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003). We deny in part and
dismiss in part petition No. 06-72831, and we deny petition 06-75541.
The record does not compel the conclusion that changed circumstances
excused the untimely filing of petitioners’ asylum application. See 8 C.F.R. §
1208.4(a)(4); Ramadan v. Gonzales, 479 F.3d 646, 656-58 (9th Cir. 2007) (per
curiam). Accordingly, petitioners’ asylum claim fails.
Substantial evidence supports the agency’s determination that petitioners
failed to establish past persecution because the harms they personally suffered did
not rise to the level of persecution, see Wakkary, 558 F.3d at 1059-60, and they
failed to establish that their family members were persecuted on account of a
protected ground, see Padash v. INS, 358 F.3d 1161, 1166-67 (9th Cir. 2004). We
lack jurisdiction to consider petitioners’ contention that they are entitled to
withholding of removal as members of a disfavored group because they did not
JT/Research 2 06-72831
raise the issue in their brief to the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678
(9th Cir. 2004). Petitioners failed to establish they face a clear probability of
future persecution otherwise. See Hoxha v. Ashcroft, 319 F.3d 1179, 1184-85 (9th
Cir. 2003). Accordingly, their withholding of removal claim fails.
We reject petitioners’ ineffective assistance of counsel claim because any
deficiencies in counsel’s representation did not prejudice them. See Castillo-Perez
v. INS, 212 F.3d 518, 527 n.12 (9th Cir. 2000) (“Due process challenges to
deportation proceedings require a showing of prejudice to succeed.”).
We lack jurisdiction to consider petitioners’ contention that the agency
failed to consider reports they submitted regarding the rise of Islamic terrorism in
Indonesia because they did not exhaust it. See Barron, 358 F.3d at 678.
Finally, Rajbir Singh waived any challenge to the BIA’s denial of his motion
to reopen by failing to address it in the opening brief. See Martinez-Serrano v.
INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996) (challenge to denial of motion to
reopen not discussed in body of the opening brief was waived).
No. 06-72831: PETITION FOR REVIEW DENIED in part;
DISMISSED in part.
No. 06-75441: PETITION FOR REVIEW DENIED.
JT/Research 3 06-72831