NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
OCT 27 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
DANI KURNIAWAN, No. 12-73437
Petitioner, Agency No. A099-418-162
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 21, 2015**
Stanford Law School, California
Before: PAEZ, MURGUIA, and HURWITZ, Circuit Judges.
Petitioner Dani Kurniawan, a native and citizen of Indonesia, petitions for
review of the Board of Immigration Appeals’ (BIA) order dismissing his appeal
from the immigration judge’s (IJ) denial of his application for asylum, withholding
*
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).
of removal, and relief under the Convention Against Torture (CAT). We deny
Kurniawan’s petition in part and dismiss in part.
1. Kurniawan first applied for asylum in 2006 as a derivative beneficiary of his
then-wife’s application. Kurniawan filed his own application for asylum in 2009.
Because Kurniawan arrived in the United States in 2000, both of his applications
for asylum were untimely. See 8 U.S.C. § 1158(a)(2)(B); Ramadan v. Gonzales,
479 F.3d 646, 649 (9th Cir. 2007) (explaining that under the statute, an alien
seeking asylum ordinarily “must file an application within one year of arrival in the
United States”). While Kurniawan points to his divorce in 2008 and changed
country conditions in 2006 as changed circumstances, these did not materially
affect Kurniawan’s eligibility for asylum in the years between 2000 and 2006, nor
did they constitute changed circumstances that would excuse the untimely filing of
his 2009 application. See 8 U.S.C. § 1158(a)(2)(D).
2. Kurniawan’s application for withholding of removal likewise fails. Even
assuming that Kurniawan established past persecution, the IJ’s factual findings
supported the BIA’s conclusion that the Government had rebutted any presumption
that his life or freedom would be threatened upon removal. The IJ found that the
country reports submitted by the Government indicated that ethnically Chinese
citizens and Catholics were safe in Indonesia, that Kurniawan was last mistreated
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in 1986, that Kurniawan’s mistreatment had not occurred with government
acquiescence, and that Kurniawan’s brother had lived safely in Indonesia until he
left in 2009. See Singh v. Holder, 753 F.3d 826, 830 (9th Cir. 2014) (“[The]
presumption is rebutted if the government shows by a preponderance of the
evidence that there has been a fundamental change in circumstances such that [the
petitioner’s] life or freedom would not be threatened on account of a protected
ground upon his return” to his country of origin).
3. The BIA did not engage in improper factfinding; rather, it properly adopted
the IJ’s factual findings and treated those facts as true in conducting its analysis.
See Berroteran-Melendez v. INS, 955 F.2d 1251, 1258 (9th Cir. 1992) (noting that
BIA may adopt IJ’s factual findings). Nor did the BIA err in relying on country
conditions reports to conclude that any presumption that Kurniawan’s life or
freedom would be threatened upon return to Indonesia had been rebutted. See
Singh, 753 F.3d at 832 (holding that the BIA may rely on country reports, so long
as the evidence is sufficiently individualized to the petitioner’s claim).
4. Substantial evidence supports the IJ’s and BIA’s conclusion that Kurniawan
was not eligible for CAT relief, as the mistreatment he described did not amount to
torture. Kamalthas v. INS, 251 F.3d 1279, 1284 (9th Cir. 2001) (noting “high bar
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to obtaining relief” under CAT); Nuru v. Gonzales, 404 F.3d 1207, 1224 (9th Cir.
2005) (observing that “torture is more severe than persecution”).
5. We lack jurisdiction to consider whether Kurniawan established eligibility
for humanitarian asylum because he never raised the issue before the agency. See
Vargas v. INS, 831 F.2d 906, 907–08 (9th Cir. 1987) (“Failure to raise an issue in
an appeal to the BIA constitutes a failure to exhaust remedies with respect to that
question and deprives this court of jurisdiction to hear the matter.”).
PETITION FOR REVIEW DENIED IN PART; DISMISSED IN PART.
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