Indra Winata v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION MAR 21 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
INDRA WINATA, No. 09-73563
Petitioner, Agency No. A099-462-820
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 6, 2012 **
Before: B. FLETCHER, REINHARDT, and TASHIMA, Circuit Judges.
Indra Winata, a native and citizen of Indonesia, petitions for review of the
Board of Immigration Appeals’ order dismissing his appeal from an immigration
judge’s decision denying his application for asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”). We have jurisdiction
*
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).
under 8 U.S.C. § 1252. We review for substantial evidence the agency’s factual
findings, and we review de novo the agency’s legal determinations. Wakkary v.
Holder, 558 F.3d 1049, 1056 (9th Cir. 2009). We deny the petition for review.
The record does not compel the conclusion that Winata established changed
or extraordinary circumstances to excuse his untimely asylum application. See
8 C.F.R. § 1208.4(a)(4), (5). Accordingly, his asylum claim fails.
Substantial evidence supports the agency’s determination that Winata’s
experiences, including the burning down of his business in the 1998 riots, his
wife’s arrest, and the past harassment and trouble experienced by his family, do not
rise to the level of persecution. See Khourassany v. INS, 208 F.3d 1096, 1100-01
(9th Cir. 2000) (harassment, questioning by police, and forced closing of
Palestinian Israeli’s restaurant, when he continued to operate other businesses, did
not constitute persecution); see also Wakkary, 559 F.3d at 1059-60. Substantial
evidence also supports the agency’s finding that, even under a disfavored group
analysis, Winata failed to demonstrate a clear probability of future persecution
because he did not establish sufficient individualized risk and his wife remains in
Indonesia unharmed. See id. at 1066 (“An applicant for withholding of removal
will need to adduce a considerably larger quantum of individualized-risk evidence
to prevail . . . .”); see also Tamang v. Holder, 598 F.3d 1083, 1094 (9th Cir. 2010)
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(analyzing withholding of removal claim and concluding that petitioner’s fear of
future persecution, which was based on threats received by his family, was not
objectively reasonable where his family voluntarily returned to Nepal and
continued to live there unharmed). Accordingly, Winata’s withholding of removal
claim fails.
Finally, substantial evidence supports the agency’s denial of CAT relief
because Winata failed to show it is more likely than not he will be tortured with the
consent or acquiescence of the government if returned to Indonesia. See Wakkary,
558 F.3d at 1067-68.
PETITION FOR REVIEW DENIED.
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