NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT AUG 9 2011
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
FERRY SANTOSO, No. 08-73090
Petitioner, Agency No. A094-990-719
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 2, 2011 **
Before: LEAVY, IKUTA, and N.R. SMITH, Circuit Judges.
Ferry Santoso, a native and citizen of Indonesia, petitions for review of the
Board of Immigration Appeals’ order dismissing his appeal from an immigration
judge’s decisions denying his motion for a continuance and his application for
asylum, withholding of removal, and protection under the Convention Against
*
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).
Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review de
novo questions of law and for substantial evidence factual findings. Husyev v.
Mukasey, 528 F.3d 1172, 1177 (9th Cir. 2008). We deny in part and dismiss in
part the petition for review.
The record does not compel the conclusion that Santoso filed his application
within a reasonable period of time after his lawful status expired. See Husyev, 528
F.3d at 1181-82. The record also does not compel the conclusion that Santoso
otherwise established changed or extraordinary circumstances excusing his
untimely application. See 8 C.F.R. §§ 1208.4(a)(4), (5). In addition, Santoso’s
conclusory assertions that the agency failed to adequately articulate reasons for
finding he did not qualify for an exception, and failed to adequately question him
regarding changed country conditions and circumstances accounting for his late
filing, are belied by the record. Accordingly, Santoso’s asylum claim fails.
Substantial evidence supports the agency’s determination that, considered
individually or cumulatively, Santoso’s experiences did not rise to the level of
persecution. See Wakkary v. Holder, 558 F.3d 1049, 1059-60 (“discriminatory
mistreatment” of Indonesian Chinese Christian, including beatings and robberies
and being accosted by a hostile mob, did not compel a finding of past persecution);
Fisher v. INS, 79 F.3d 955, 961-62 (9th Cir. 1996) (en banc) (persecution does not
2 08-73090
include “mere discrimination, as offensive as it may be,” including government
enforcement of discriminatory regulations). Substantial evidence also supports the
agency’s conclusion that Santoso failed to establish an individualized risk of
persecution, even under disfavored-group analysis. See Halim v. Holder, 590 F.3d
971, 979 (9th Cir. 2009) (petitioner failed to show he was individually targeted or
likely to be individually targeted where he “failed to offer any evidence that
distinguishes his exposure from those of all other ethnic Chinese Indonesians”); cf.
Sael v. Ashcroft, 386 F.3d 922, 927-29 (9th Cir. 2004). Further, the record does
not compel the conclusion that there is a pattern or practice of persecution against
ethnic Chinese Christians in Indonesia. See Wakkary, 558 F.3d at 1060-62.
Accordingly, we deny the petition as to Santoso’s withholding of removal claim.
We lack jurisdiction to review Santoso’s contentions regarding his wife and
child because he failed to raise these claims to the BIA. See Barron v. Ashcroft,
358 F.3d 674, 678 (9th Cir. 2004) (no jurisdiction over claims not presented
below). We also decline to consider the new evidence Santoso references in his
opening brief because our review is limited to the administrative record underlying
the IJ’s decision. See Fisher, 79 F.3d at 963.
3 08-73090
Apart from a conclusory assertion, Santoso does not make any argument
challenging the agency’s denial of CAT relief. See Martinez-Serrano v. INS, 94
F.3d 1256, 1259-60 (9th Cir. 1996).
Finally, we decline to consider Santoso’s claim that the agency erred in
denying his request for a continuance, as well as his due process claims. See
Bazuaye v. INS, 79 F.3d 118, 120 (9th Cir. 1996) (per curiam) (“Issues raised for
the first time in the reply brief are waived.”).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
4 08-73090