Samuel Rantung v. Eric Holder, Jr. ( 2010 )

FILED
NOT FOR PUBLICATION DEC 27 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T O F AP PE ALS
FOR THE NINTH CIRCUIT
SAMUEL MUSAK RANTUNG, No. 09-73076
Petitioner, Agency No. A096-351-718
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
HANA LIMBAT, No. 09-73085
Petitioner, Agency No. A096-351-717
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Submitted December 14, 2010 **
Before: GOODWIN, WALLACE, and W. FLETCHER, Circuit Judges.
In these consolidated cases, Hana Limbat and Samuel Musak Rantung,
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 Limbat’s application for asylum, withholding of removal, and
relief under the Convention Against Torture (“CAT”) (No. 09-73085), and the
BIA’s order denying Rantung’s motion to reopen removal proceedings (No. 09-
73076). We have jurisdiction under 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 due process claims, including ineffective assistance of
counsel claims, Ram v. Mukasey, 529 F.3d 1238, 1241 (9th Cir. 2008). We deny
both petitions for review.
With respect to No. 09-73085, the record does not compel the conclusion
that changed or extraordinary circumstances excused the untimely filing of
Limbat’s asylum application. See 8 C.F.R. § 1208.4(a)(4), (5); Ramadan v.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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Gonzales, 479 F.3d 646, 656-58 (9th Cir. 2007) (per curiam); Tampubolon v.
Holder, 610 F.3d 1056, 1059 (9th Cir. 2010) (case law decided subsequent to the
filing of an asylum application is not a changed circumstance that excuses untimely
filing). We reject Limbat’s contention that the agency violated her rights by
refusing to equitably toll the time limitation for filing her asylum application. See
Hernandez-Mezquita v. Ashcroft, 293 F.3d 1161, 1163-65 (9th Cir. 2002)
(rejecting equal protection challenge to statutory time limitation where limitation
served a rational purpose; requiring error for due process violation). Accordingly,
Limbat’s asylum claim fails.
Substantial evidence supports the agency’s determination that Limbat failed
to establish past persecution because the harms she personally suffered did not rise
to the level of persecution, see Wakkary, 558 F.3d at 1059-60, and the record does
not compel the conclusion that her father was persecuted on account of a protected
ground, see Padash v. INS, 358 F.3d 1161, 1166-67 (9th Cir. 2004) (petition
denied in part because no evidence incidents were part of a pattern of harm against
petitioner’s family on the basis of religion). Even as a member of a disfavored
group, the record does not compel the conclusion that Limbat established sufficient
individualized risk to show a clear probability of persecution. See Wakkary, 558
F.3d at 1066 (“An applicant for withholding of removal will need to adduce a
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considerably larger quantum of individualized-risk evidence to prevail”). Thus,
Limbat’s withholding of removal claim fails.
Substantial evidence also supports the agency’s conclusion that Limbat is
not eligible for CAT relief because she failed to show it is more likely than not she
would be tortured if removed to Indonesia. See id. at 1067-68.
With respect to No. 09-73076, the BIA did not abuse its discretion in
denying Rantung’s motion to reopen as untimely because Rantung filed it over five
years after the BIA issued its final removal order, see 8 C.F.R. § 1003.2(c)(2), and
Rantung and failed to submit material evidence of changed circumstances in
Indonesia that would excuse the late filing, see 8 C.F.R. § 1003.2(c)(3)(ii); see also
Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir. 2004) (requiring circumstances to
have changed sufficiently that a petitioner who previously did not have a legitimate
claim for asylum now has a well-founded fear of future persecution).
Finally, the BIA did not abuse its discretion by denying Rantung’s motion
to reopen based on ineffective assistance of counsel, because he did not establish
he was prejudiced by counsel’s actions. See Iturribarria v. INS, 321 F.3d 889,
901-903 (9th Cir. 2003).
No. 09-73085: PETITION FOR REVIEW DENIED.
No. 09-73076: PETITION FOR REVIEW DENIED.
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