FILED
NOT FOR PUBLICATION
JUN 8 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HENDY RIYANTO HO; FNU LILY, No. 18-70118
Petitioners, Agency Nos. A089-780-547
A089-780-548
v.
WILLIAM P. BARR, Attorney General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 4, 2020**
Before: HAWKINS, GRABER, and CLIFTON, Circuit Judges.
Hendy Riyanto Ho and FNU Lily (“Petitioners”), natives and citizens of
Indonesia, petition for review of the Board of Immigration Appeals’ (“BIA”) order
denying their motion to reopen removal proceedings. We have jurisdiction under 8
U.S.C. § 1252. We review for abuse of discretion, Tadevosyan v. Holder, 743 F.3d
1250, 1252 (9th Cir. 2014), and deny the petition for review.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
A motion to reopen can be filed after the filing deadline if the motion is
based on changed country conditions and “such evidence is material and was not
available and would not have been discovered or presented at the previous
hearing.” 8 C.F.R. § 1003.2(c)(3)(ii). However, even if an alien shows changed
country conditions, the BIA may deny a motion to reopen if the alien fails to
demonstrate eligibility for the underlying relief sought. See I.N.S. v. Doherty, 502
U.S. 314, 323 (1992). Petitioners originally applied for asylum, withholding of
removal, and protection under the Convention Against Torture (“CAT”).
Petitioners then filed an untimely motion to reopen based upon claimed changed
country conditions in Indonesia. Even assuming arguendo that the BIA erred in
concluding that Petitioners failed to demonstrate a material change in
circumstances, the BIA did not err in concluding that Petitioners failed to make a
prima facie showing of eligibility for asylum, withholding of removal, or
protection under CAT.
To qualify for asylum, an alien must demonstrate that the source of the
alleged persecution was the government, a quasi-official group, or persons or
groups that the government is unwilling or unable to control. See Avetova-Elisseva
v. I.N.S., 213 F.3d 1192, 1196 (9th Cir. 2000). The BIA concluded that Petitioners
failed to show “that the Indonesian government is unable or unwilling to protect
2
them from the potential threat, given its robust counterterrorism campaign.”
Petitioners did not challenge this determination in their opening brief to this court
and have thus waived the issue. See Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th
Cir. 2011). Such an argument would fail in any event, as there is no evidence in the
record to suggest the Indonesian government would be unwilling or unable to
protect them. Petitioners similarly fail to demonstrate eligibility for withholding of
removal. See Pedro-Mateo v. I.N.S., 224 F.3d 1147, 1150 (9th Cir. 2000) (“A
failure to satisfy the . . . standard of proof required to establish eligibility for
asylum . . . necessarily results in a failure to demonstrate eligibility for withholding
of deportation.”).
The BIA also did not abuse its discretion in concluding that Petitioners did
not demonstrate eligibility for protection under CAT. To do so, an alien must show
“that it is more likely than not that he will be tortured upon removal, and that the
torture will be inflicted at the instigation of, or with the consent or acquiescence of,
the government.” Arteaga v. Mukasey, 511 F.3d 940, 948 (9th Cir. 2007). As the
BIA concluded, there is no evidence to suggest the Indonesian government would
fail to protect Petitioners, let alone engage in or acquiesce in torture.
PETITION FOR REVIEW DENIED.
3