Lim v. Holder

FILED
NOT FOR PUBLICATION AUG 10 2010

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

TJIOE SIM LIM; et al., No. 07-73017

Petitioners, Agency Nos. A096-054-796
A096-054-797
v. A096-054-798

ERIC H. HOLDER, Jr., Attorney General,
MEMORANDUM *
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted July 19, 2010 **

Before: B. FLETCHER, REINHARDT, and WARDLAW, Circuit Judges.

Tjioe Sim Lim, and her family, 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 application for asylum,

withholding of removal, and protection under the Convention Against Torture

*
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).
(“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for

substantial evidence, Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir. 2009), and

we deny in part grant in part the petition for review.

The record does not compel the conclusion that petitioners demonstrated

extraordinary circumstances to excuse their untimely asylum application. See 8

C.F.R. § 1208.4(a)(5). Accordingly, we deny the petition with respect to

petitioners’ asylum claim.

The BIA found the incidents of harm petitioners suffered, including the

incident in which native Indonesian Muslims attempted to rape Lim and attacked

and beat Lim and her husband, did not rise to the level of persecution. Substantial

evidence does not support this finding. See Ruano v. Ashcroft, 301 F.3d 1155,

1159-61 (9th Cir. 2002) (threats accompanied by close confrontation may

constitute past persecution). Accordingly, we remand the petitioners’ withholding

of removal claim to the BIA for further proceedings consistent with this

disposition. See INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam).

Finally, substantial evidence supports the agency’s denial of petitioners’

CAT claim because they failed to establish they would more likely than not be

tortured if returned to Indonesia. See Wakkary, 558 F.3d at 1067-68.

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 Each party shall bear its own costs for this petition for review.

PETITION FOR REVIEW DENIED in part; GRANTED in part;

REMANDED.

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