FILED
NOT FOR PUBLICATION SEP 26 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
HERMANTO LIM, No. 10-73506
Petitioner, Agency No. A099-885-973
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 19, 2012 **
Before: LEAVY, HAWKINS, and HURWITZ, Circuit Judges.
Hermanto Lim, a native and citizen of Indonesia, petitions for review of the
Board of Immigration Appeals’ order (“BIA”) dismissing his appeal from an
immigration judge’s (“IJ”) decision 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, Wakkary v. Holder, 558 F.3d
1049, 1056 (9th Cir. 2009), and we review de novo claims of due process
violations, Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000). We deny in part
and dismiss in part the petition for review.
Substantial evidence supports the agency’s finding that the cumulative effect
of the harms experienced by Lim, including several physical altercations in his
youth, fear during anti-Chinese riots, an altercation with a police officer, minor
extortion, and intimidation at his family’s home, do not rise to the level of
persecution. See Halim v. Holder, 590 F.3d 971, 975-76 (9th Cir. 2009) (incidents
suffered by ethnic Chinese petitioner in Indonesia, considered in the aggregate, did
not amount to persecution); Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir.
2003) (harassment, threats, and beating unconnected with any particular threat did
not compel finding that ethnic Albanian suffered past persecution in Kosovo).
Substantial evidence also supports the agency’s findings that Lim failed to
establish sufficient individualized risk of harm under a disfavored group analysis to
establish a well-founded fear of persecution, see Halim, 590 F.3d at 977-80, and
that he failed to establish a pattern or practice of persecution against ethnic Chinese
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in Indonesia, see Lolong v. Gonzales, 484 F.3d 1173, 1180-81 (9th Cir. 2007) (en
banc). Accordingly, Lim’s asylum claim fails.
Because Lim failed to meet the lower burden of proof for asylum, his claim
for withholding of removal necessarily fails. See Zehatye v. Gonzales, 453 F.3d
1182, 1190 (9th Cir. 2006).
Further, substantial evidence supports the agency’s denial of CAT relief
because Lim failed to show it is more likely than not that he will be tortured with
the consent or acquiescence of the government if returned to Indonesia. See
Wakkary, 558 F.3d at 1067-68.
Finally, Lim’s contention that the IJ abandoned her role as a neutral fact
finder fails because Lim was given a full and fair hearing on his claims and a
reasonable opportunity to present evidence. See Vargas-Hernandez v. Gonzales,
497 F.3d 919, 926-27 (9th Cir. 2007). His contention that the IJ failed to give
notice and an opportunity to explain a lack of evidence in the record is not
exhausted. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). Lim’s
contention that the BIA violated his due process by failing to address arguments in
its decision is belied by the record, and his contention that the BIA violated his due
process by failing to remand for the IJ to consider the country reports fails. See
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Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error to prevail on a
due process claim).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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