Soemampouw v. Holder

FILED
NOT FOR PUBLICATION SEP 30 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ERIC PIETER SOEMAMPOUW; Nos. 06-71353
INDRA WATI PINKAN EMAN, 06-73767
Petitioners, Agency Nos. A096-229-522
A097-349-836
v.
ERIC H. HOLDER, Jr., Attorney General, MEMORANDUM *
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 13, 2010 **
Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.
In these consolidated cases, Eric Pieter Soemampouw and Indra Wati Pinkan
Eman, natives and citizens of Indonesia, petition for review of the Board of
Immigration Appeals’ (“BIA”) order dismissing their appeal from an immigration
judge’s (“IJ”) decision denying their application for asylum, withholding of
*
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).
removal, and relief under the Convention Against Torture (“CAT”) in No. 06-
71353, and the BIA’s order denying their motion to reopen proceedings in No. 06-
73767. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for
substantial evidence the agency’s factual findings, Zehatye v. Gonzales, 453 F.3d
1182, 1184-85 (9th Cir. 2006), and review for abuse of discretion the denial of a
motion to reopen, and we review de novo due process claims based on ineffective
assistance of counsel, Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003). We
deny in part and dismiss in part the petition for review in No. 06-71353, and deny
the petition in No. 06-73767.
The record does not compel the conclusion that petitioners established
changed circumstances excusing the untimely filing of their asylum application.
See 8 C.F.R. § 1208.4(a)(4); Ramadan v. Gonzales, 479 F.3d 646, 656-58 (9th Cir.
2007) (per curiam). Accordingly, petitioners’ asylum claim fails.
Even as members of a disfavored group, petitioners failed to demonstrate the
requisite individualized risk of persecution. See Hoxha v. Ashcroft, 319 F.3d 1179,
1184-85 (9th Cir. 2003); see also Wakkary v. Holder, 558 F.3d 1049, 1066 (9th
Cir. 2009) (“An applicant for withholding of removal will need to adduce a
considerably larger quantum of individualized-risk evidence to prevail”).
Accordingly, petitioners’ withholding of removal claim fails.
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Substantial evidence supports the agency’s denial of CAT relief because
petitioners have not shown it is more likely than not they would be tortured in
Indonesia. See id. at 1067-68.
We lack jurisdiction to review petitioners’ unexhausted due process claim
regarding the agency’s failure to serve them with the IJ’s revised decision. See
Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004).
Lastly, the BIA did not abuse its discretion by denying petitioners’ motion to
reopen based on ineffective assistance of counsel, because petitioners did not
establish they were prejudiced by prior counsel’s actions. See Iturribarria, 321
F.3d at 901-03.
No. 06-71353: PETITION FOR REVIEW DENIED in part;
DISMISSED in part.
No. 06-73767: PETITION FOR REVIEW DENIED.
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