James MacAwalang v. Eric Holder, Jr. ( 2013 )

FILED
NOT FOR PUBLICATION FEB 15 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JAMES RICARDO MACAWALANG; No. 11-71155
HESTY VERONICA TIWA,
Agency Nos. A096-362-904
Petitioners, A096-362-905
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 11, 2013 **
Before: FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.
James Ricardo Macawalang and Hesty Veronica Tiwa, 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 denying their
*
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).
applications for asylum, withholding of removal, and relief under the Convention
Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We
review for substantial evidence the BIA’s factual findings. Wakkary v. Holder,
558 F.3d 1049, 1056 (9th Cir. 2009). We deny in part and dismiss in part the
petition for review.
We deny petitioners’ pending motions to take judicial notice of materials
outside the administrative record. See Fisher v. INS, 79 F.3d 955, 963 (9th Cir.
1996) (en banc) (this court’s review is limited to the administrative record).
With respect to Macawalang’s asylum claim, and Tiwa’s withholding of
removal claim, substantial evidence supports the BIA’s determination that
Macawalang and Tiwa failed to establish they experienced past persecution in
Indonesia. See Wakkary, 558 F.3d at 1059-60 (“being accosted by a threatening
mob” while driving was discriminatory mistreatment but did not constitute past
persecution). Substantial evidence also supports the BIA’s finding that, even under
a disfavored group analysis, Macawalang failed to establish a well-founded fear of
persecution and Tiwa failed to establish it is more likely than not that she will be
persecuted in Indonesia, because they did not demonstrate sufficient individualized
risk of persecution. See Halim v. Holder, 590 F.3d 971, 979 (9th Cir. 2009);
2 11-71155
Wakkary, 558 F.3d at 1066 (“[a]n applicant for withholding of removal will need
to adduce a considerably larger quantum of individualized-risk evidence”). We
reject petitioners’ request that the court reconsider its stance regarding a pattern or
practice of persecution. Accordingly, both Macawalang’s asylum claim and
Tiwa’s withholding of removal claim fail.
Because Macawalang did not establish eligibility for asylum, it necessarily
follows that he cannot meet the heavier burden of qualifying for withholding of
removal. See Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006).
With respect to Tiwa’s asylum claim, the record does not compel the
conclusion Tiwa established changed or extraordinary circumstances to excuse the
delay in filing her asylum application. See 8 C.F.R. § 1208.4(a)(4)-(a)(5);
Ramadan v. Gonzales, 479 F.3d 646, 657-58 (9th Cir. 2007) (per curiam). We lack
jurisdiction to consider whether the fact that Tiwa was listed on her husband’s
asylum application constitutes an extraordinary circumstance excusing her
untimely asylum application, because she did not raise this argument to the BIA.
See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). We reject petitioners’
challenge to this court’s decision in Tampubolon v. Holder, 598 F.3d 1049 (9th
Cir. 2009). See Avagyan v. Holder, 646 F.3d 672, 677 (9th Cir. 2011) (“[a] three-
judge panel cannot reconsider or overrule circuit precedent unless an intervening
3 11-71155
Supreme Court decision undermines an existing precedent of the Ninth Circuit”)
(internal quotation and citation omitted). Accordingly, Tiwa’s asylum claim fails.
We lack jurisdiction to review petitioners’ CAT contentions, because
petitioners failed to raise them to the BIA. See Barron, 358 F.3d at 678.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
4 11-71155