FILED
NOT FOR PUBLICATION MAR 01 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
TOAR PUTRA FAJAR No. 09-72207
LUMINGKEWAS,
Agency No. A095-634-589
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 15, 2011 **
Before: CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.
Toar Putra Fajar Lumingkewas, a native and citizen of Indonesia, petitions
for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his
appeal from an immigration judge’s (“IJ”) decision denying 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”). We have jurisdiction under 8 U.S.C. § 1252. We review de
novo questions of law and for substantial evidence factual findings. Wakkary v.
Holder, 558 F.3d 1049, 1056 (9th Cir. 2009). We deny the petition for review.
We do not address Lumingkewas’s arguments regarding the timeliness of his
asylum application because the BIA addressed his asylum claim on the merits.
Substantial evidence supports the agency’s past persecution finding because the
stoning of Lumingkewas’s church did not constitute persecution, see id. at 1059-60
(“discriminatory mistreatment” including two incidents of beating and robbery and
being accosted by a hostile mob did not compel a finding of past persecution), and
Lumingkewas did not show the government was unable or unwilling to control the
men who attacked him on Christmas Eve, see Castro-Perez v. Gonzales, 409 F.3d
1069, 1072 (9th Cir. 2005). Substantial evidence also supports the agency’s
finding that Lumingkewas failed to establish a well-founded fear of persecution
because, even under disfavored group analysis, he did not demonstrate sufficient
individualized risk. 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). Moreover, the record does not compel the conclusion
2 09-72207
that there is a pattern or practice of persecution against Christians in Indonesia.
See Wakkary, 558 F.3d at 1060-62. Accordingly, we deny the petition as to
Lumingkewas’s asylum claim.
Because Lumingkewas failed to meet the lower standard of proof for
asylum, his claim for withholding of removal necessarily fails. See Zehatye v.
Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006).
Lumingkewas did not challenge the agency’s denial of CAT relief. See
Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996) (issues not
specifically raised and argued in a party’s opening brief are waived).
PETITION FOR REVIEW DENIED.
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