Hermanto Lim v. Eric Holder, Jr. , 510 F. App'x 620 ( 2013 )

FILED
UNITED STATES COURT OF APPEALS FEB 28 2013
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U .S. C O U R T OF APPE ALS
HERMANTO LIM, No. 10-73506
Petitioner, Agency No. A099-885-973
v.
ORDER
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
Before: LEAVY, HAWKINS, and HURWITZ, Circuit Judges.
The full court has been advised of Lim’s petition for rehearing en banc and
no judge has requested a vote on whether to rehear the matter en banc. See Fed. R.
App. P. 35.
The memorandum disposition filed on September 26, 2012, is withdrawn.
An amended memorandum disposition is being filed concurrently with this order.
With this amendment, Lim’s petition for rehearing en banc is denied.
Any additional petition for rehearing shall be filed within 45 days from the
date the amended memorandum disposition is filed.
FILED
NOT FOR PUBLICATION FEB 28 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
HERMANTO LIM, No. 10-73506
Petitioner, Agency No. A099-885-973
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 19, 2012 **
Before: LEAVY, HAWKINS, and HURWITZ, Circuit Judges.
Hermanto Lim, a native and citizen of Indonesia, petitions for review of the
Board of Immigration Appeals’ order (“BIA”) dismissing his appeal from an
immigration judge’s (“IJ”) decision denying his application for asylum,
withholding of removal, and protection under the Convention Against Torture
*
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).
(“CAT”). 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), and we review de novo claims of due process
violations, Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000). We deny in part
and dismiss in part the petition for review.
Substantial evidence supports the agency’s finding that the cumulative effect
of the harms experienced by Lim, including several physical altercations in his
youth, fear during anti-Chinese riots, an altercation with a police officer, minor
extortion, and intimidation at his family’s home, do not rise to the level of
persecution. See Halim v. Holder, 590 F.3d 971, 975-76 (9th Cir. 2009) (incidents
suffered by ethnic Chinese petitioner in Indonesia, considered in the aggregate, did
not amount to persecution); Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir.
2003) (harassment, threats, and beating unconnected with any particular threat did
not compel finding that ethnic Albanian suffered past persecution in Kosovo).
Substantial evidence also supports the agency’s findings that Lim failed to
establish sufficient individualized risk of harm under a disfavored group analysis to
establish a well-founded fear of persecution, see Halim, 590 F.3d at 977-80, and
that he failed to establish a pattern or practice of persecution against ethnic Chinese
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in Indonesia, see Lolong v. Gonzales, 484 F.3d 1173, 1180-81 (9th Cir. 2007) (en
banc). Accordingly, Lim’s asylum claim fails.
Because Lim failed to meet the lower burden of proof for asylum, his claim
for withholding of removal necessarily fails. See Zehatye v. Gonzales, 453 F.3d
1182, 1190 (9th Cir. 2006).
Further, substantial evidence supports the agency’s denial of CAT relief
because Lim failed to show it is more likely than not that he will be tortured with
the consent or acquiescence of the government if returned to Indonesia. See
Wakkary, 558 F.3d at 1067-68.
Finally, Lim’s contention that the BIA violated his due process rights by
failing to remand for the IJ to consider the country reports fails. See Lata v. INS,
204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error and prejudice to prevail on a
due process claim). We reject Lim’s argument that the BIA violated his due
process rights by failing to address his arguments, because the BIA addressed the
arguments he raised. See id. Finally, we lack jurisdiction to consider Lim’s
additional due process contentions regarding alleged problems by the IJ because he
did not exhaust them to the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th
Cir. 2004).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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