FILED
NOT FOR PUBLICATION JUL 29 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RELINA SIANIPAR, No. 09-73306
Petitioner, Agency No. A099-346-631
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 22, 2014**
Before: GOODWIN, CANBY, and CALLAHAN, Circuit Judges.
Relina Sianipar, a native and citizen of Indonesia, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from the
immigration judge’s decision denying her application for asylum, withholding of
removal, relief under the Convention Against Torture (“CAT”), and cancellation 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. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for
substantial evidence the agency’s factual findings. Nagoulko v. INS, 333 F.3d
1012, 1015 (9th Cir. 2003). We deny in part and dismiss in part the petition for
review.
Sianipar argued to the BIA that her untimely asylum application should be
excused based on changed country conditions in Indonesia, and based on the
extraordinary circumstances of her pregnancy and ineffective assistance of counsel.
Among other reasons, the BIA rejected Sianipar’s changed country conditions and
pregnancy arguments because it found that Sianipar failed to file her asylum
application within a reasonable period of time. The BIA rejected Sianipar’s
ineffective assistance of counsel argument because she did not meet the threshold
requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). Sianipar does
not raise any challenges to these findings. See Martinez-Serrano v. INS, 94 F.3d
1256, 1259-60 (9th Cir. 1996). We lack jurisdiction to consider Sianipar’s
equitable tolling and due process arguments regarding the one-year bar because she
did not raise them to the BIA. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th
Cir. 2004) (court lacks jurisdiction to review claims not raised to the agency).
Thus, we deny the petition as to Sianipar’s asylum claim.
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With respect to Sianipar’s claim for withholding of removal, substantial
evidence supports the BIA’s determination that the harm suffered by Sianipar does
not rise to the level of persecution. See Nagoulko, 333 F.3d at 1016-17. Even
under a disfavored group analysis, substantial evidence supports the BIA’s
determination that Sianipar failed to establish sufficient individualized risk of
persecution to establish it is more likely than not that she would be persecuted. See
Halim v. Holder, 590 F.3d 971, 979 (9th Cir. 2009) (petitioner failed to
demonstrate sufficient evidence of individualized risk of harm under a disfavored
group analysis to establish a well-founded fear of future persecution); Wakkary v.
Holder, 558 F.3d 1049, 1066 (9th Cir. 2009) (“[a]n applicant for withholding of
removal will need to adduce a considerably larger quantum of individualized-risk
evidence to prevail than would an asylum applicant”). We reject Sianipar’s
contention that this case should be remanded in light of Tampubolon v. Holder,
610 F.3d 1056 (9th Cir. 2010). Thus, Sianipar’s withholding of removal claim
fails.
We lack jurisdiction over Sianipar’s CAT claim because she did not exhaust
it before the BIA. See Barron, 358 F.3d at 677-78.
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We do not consider the new exhibit Sianipar attached to her opening brief
because our review is limited to the administrative record before the BIA. See
Fisher v. INS, 79 F.3d 955, 963 (9th Cir. 1996) (en banc).
We lack jurisdiction over Sianipar’s claim that the BIA misapplied the
hardship standard to the facts of her case and did not consider this court’s decision
in Tampubolon, because the claim does not raise a colorable constitutional issue.
See Martinez-Rosas v. Gonzales, 424 F.3d 926, 929-30 (9th Cir. 2005) (no
colorable constitutional claim where petitioner argued the agency erred in finding
she did not meet the “exceptional and extremely unusual hardship” requirement).
Similarly, we reject Sianipar’s due process claim based on family unity
considerations. See id.; see also De Mercado v. Mukasey, 566 F.3d 810, 816 (9th
Cir. 2009) (rejecting due process argument regarding hardship determination based
on family unity considerations).
Finally, we lack jurisdiction to review the claim that the IJ inappropriately
questioned Sianipar and her counsel because that claim was not exhausted before
the agency. See Barron, 358 F.3d at 677-78.
PETITION FOR REVIEW IS DENIED in part; DISMISSED in part.
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