Wahjudi v. Holder , 431 F. App'x 602 ( 2011 )

FILED
NOT FOR PUBLICATION MAY 06 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TRILUKI WAHJUDI, No. 07-72677
Petitioner, Agency No. A077-302-557
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 4, 2011**
Pasadena, California
Before: SILVERMAN, TALLMAN, and CLIFTON, Circuit Judges.
Triluki Wahjudi, a native and citizen of Indonesia, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s (“IJ”) decision denying his application for asylum,
withholding of removal, and relief under the Convention Against Torture (“CAT”).
*
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).
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We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence
findings of fact, Hoxha v. Ashcroft, 319 F.3d 1179, 1182 n.4 (9th Cir. 2003), and
de novo claims of due process violations in removal proceedings, Colmenar v. INS,
210 F.3d 967, 971 (9th Cir. 2000). We dismiss in part and deny in part the petition
for review.
This court lacks jurisdiction to consider Wahjudi’s challenge to the finding
that his asylum application is time-barred and not excused by changed or
exceptional circumstances because it is based on a factual dispute. See Ramadan v.
Gonzales, 479 F.3d 646, 650 (9th Cir. 2007) (per curiam). Accordingly, we
dismiss the petition as to his asylum claim.
Substantial evidence supports the agency’s denial of withholding of removal
because the robberies, extortion, and single incident of physical harm Wahjudi
experienced in connection with his cigarette store did not rise to the level of
persecution. See Prasad v. INS, 47 F.3d 336, 339-40 (9th Cir. 1995); see also
Gormley v. Ashcroft, 364 F.3d 1172, 1178 (9th Cir. 2004). Substantial evidence
also supports the agency’s finding that Wahjudi failed to show it is more likely
than not he would be persecuted in the future, even under a disfavored group
theory. See Hoxha, 319 F.3d at 1184-85. Further, the record does not compel the
conclusion that Wahjudi established a pattern or practice of persecution of Chinese
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Christians in Indonesia. See Wakkary v. Holder, 558 F.3d 1049, 1060-62 (9th Cir.
2009).
Substantial evidence also supports the agency’s denial of CAT relief because
Wahjudi failed to establish it is more likely than not he would be tortured if
returned to Indonesia. See El Himri v. Ashcroft, 378 F.3d 932, 938 (9th Cir. 2004).
Wahjudi’s contention that the IJ violated his due process rights by
considering evidence from other asylum applicants’ testimony fails because he did
not demonstrate prejudice. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000)
(requiring error and substantial prejudice for a petitioner to prevail on a due
process claim). His contention that the BIA erred in finding the IJ committed a de
minimus error is not supported by the record. See id.
PETITION FOR REVIEW DISMISSED IN PART, DENIED IN PART.