Muk Hioe v. Eric H. Holder Jr.

FILED
NOT FOR PUBLICATION SEP 18 2012

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

MUK SIEN HIOE, No. 08-73053

Petitioner, Agency No. A099-361-178

v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted September 10, 2012 **

Before: WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.

Muk Sien Hioe, a native and citizen of Indonesia, petitions pro se for review

of the Board of Immigration Appeals’ order dismissing his appeal from an

immigration judge’s decision (“IJ”) denying his application for asylum,

withholding of removal, and protection under the Convention Against Torture

*
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).
(“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for

substantial evidence the agency’s factual findings, applying the new standards

governing adverse credibility determinations created by the Real ID Act. Shrestha

v. Holder, 590 F.3d 1034, 1039 (9th Cir. 2010). We review de novo claims of due

process violations. Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1246 (9th Cir.

2008). We deny in part and dismiss in part the petition for review.

The IJ found Hioe not credible for several reasons, including discrepancies

regarding Hioe’s employment history and his failure to provide additional

supporting documents to corroborate his claim of being employed in Bali at the

time he was allegedly attacked in Jakarta. These findings provide substantial

evidence to support the IJ’s adverse credibility determination. See Shrestha, 590

F.3d at 1040-47. Contrary to Hioe’s contention in his opening brief, the IJ did not

discredit his claim of being an ethnic Chinese Christian. We lack jurisdiction to

review Hioe’s pattern or practice claim because he did not raise it before the

agency. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004). In the

absence of credible testimony, Hioe’s asylum and withholding of removal claims

fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).

Because Hioe’s CAT claim relies on the same statements the agency found

not credible, and he does not point to any other evidence in the record that compels

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the finding it is more likely than not he would be tortured by or with the

acquiescence of the government if returned to Indonesia, his CAT claim fails. See

Farah v. Ashcroft, 348 F.3d 1153, 1156-57 (9th Cir. 2003).

Hioe’s due process claim fails because the BIA adopted and affirmed the IJ’s

decision in its entirety, citing Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994).

See Abebe v. Gonzales, 432 F.3d 1037, 1040 (9th Cir. 2005) (en banc) (Burbano

affirmance signifies that the BIA has conducted an independent review of the

record and has determined that its conclusions are the same as those articulated by

the IJ).

Finally, we decline to consider the documents Hioe attached to his opening

brief because they are not part of the administrative record. See Fisher v. INS, 79

F.3d 955, 963-64 (9th Cir. 1996) (en banc).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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