FILED
NOT FOR PUBLICATION JUL 14 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
WALTER ROY SIAHAAN; RONNY Nos. 08-70923
JIMMY SIAHAAN, 08-73851
Petitioners, Agency Nos. A077-302-514
A077-302-517
v.
ERIC H. HOLDER, Jr., Attorney General, MEMORANDUM *
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 12, 2011 **
Before: SCHROEDER, ALARCÓN, and LEAVY, Circuit Judges.
Walter Roy Siahaan and Ronny Jimmy Siahaan, 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
applications for asylum, withholding of removal, and relief under the Convention
*
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).
Against Torture (“CAT”) (No. 08-70923), and petition for review of the BIA’s
decision denying their motion to reopen (No. 08-73851). 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), and we review
for abuse of discretion the agency’s denial of a motion to reopen, Najmabadi v.
Holder, 597 F.3d 983, 986 (9th Cir. 2010). We deny the petitions for review.
In pursuing their underlying claims during removal proceedings, petitioners
did not argue to the IJ or the BIA that they suffered past persecution in Indonesia
or that anything happened to them in Indonesia on account of their religion or
ethnicity. Rather, based on news reports and stories they heard after coming to the
United States, they argued – as they do now – that Walter fears he will be harmed
in Indonesia due to his Christianity, and that Ronny fears he will be harmed in
Indonesia due to his Christianity and Chinese ethnicity.
With respect to Walter’s asylum claim, the record does not compel the
conclusion that he established changed circumstances excusing the untimely filing
of his asylum application. See 8 C.F.R. § 1208.4(a)(4). Accordingly, Walter’s
asylum claim fails as time-barred.
Further with respect to Walter’s withholding of removal claim, even as a
member of a disfavored group, the record does not compel the conclusion that he
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established a clear probability of persecution, because he failed to demonstrate his
general, undifferentiated fear of harm is distinct from the fears felt by all other
Christians in Indonesia. See Lolong v. Gonzales, 484 F.3d 1173, 1181 (9th Cir.
2007) (en banc) (“In sum, [petitioner] has provided no evidence that [he] has been,
or is likely to be, specifically targeted for persecution by any individual or group in
Indonesia.”). Accordingly, Walter’s withholding of removal claim fails.
Similarly, with respect to Ronny’s asylum claim, even as a member of two
disfavored groups, the record does not compel the conclusion that he has
established a well-founded fear of persecution, because Ronny failed to show that
his general, undifferentiated fear of harm is distinct from the fears felt by all other
Chinese Christians in Indonesia. See id. Accordingly, Ronny’s asylum claim fails.
Because Ronny failed to establish eligibility for asylum, he necessarily
cannot meet the more stringent standard for withholding of removal. See Zehatye
v. Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006).
Finally, with respect to both Walter and Ronny’s CAT claims, substantial
evidence supports the agency’s denial of relief because petitioners failed to
establish it is more likely than not that they will be tortured if returned to
Indonesia. See Wakkary, 558 F.3d at 1067-68.
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In petition no. 08-73851, petitioners contend the BIA erred by denying their
motion to reopen based on Walter’s “new factual evidence,” i.e., Walter’s memory
of the death at birth of his twin daughters in Indonesia over 19 years earlier. The
BIA did not abuse its discretion in denying petitioners’ motion to reopen where
petitioners failed to demonstrate their additional evidence was previously
unavailable. See 8 C.F.R. § 1003.2(c)(1); Bhasin v. Gonzales, 423 F.3d 977, 984
(9th Cir. 2005) (both statute and regulation require that evidence introduced
through a motion to reopen “must not have been available to be presented at the
former hearing”) (citation and internal quotation omitted). Further, contrary to
petitioners’ contention, the BIA adequately considered the evidence presented with
their motion to reopen. See Najmabadi, 597 F.3d at 990-91.
PETITIONS FOR REVIEW DENIED.
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