David Budianto v. Eric H. Holder Jr.

FILED
NOT FOR PUBLICATION OCT 16 2012

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

FOR THE NINTH CIRCUIT

DAVID BUDIANTO, No. 08-72165

Petitioner, Agency No. A095-635-795

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

Respondent.

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

Submitted October 12, 2012 **
Pasadena, California

Before: KLEINFELD and McKEOWN , Circuit Judges, and QUIST,*** Senior
District Judge.

David Budianto, a native and citizen of Indonesia, petitions for review of the

Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an

*
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).
***
The Honorable Gordon J. Quist, Senior District Judge for the U.S.
District Court for Western Michigan, sitting by designation.
immigration judge’s (“IJ”) decision denying his application for asylum,

withholding of removal, and relief under the Convention Against Torture (“CAT”).

We have jurisdiction under 8 U.S.C. § 1252. We review the IJ’s factual findings

for substantial evidence, Zehatye v. Gonzales, 453 F.3d 1182, 1185 (9th Cir. 2006),

and we deny the petition for review.

The record does not compel the conclusion that the untimeliness of

Budianto’s asylum application—filed more than four years after his arrival in the

United States—is excused by extraordinary circumstances. See 8 U.S.C. §

1158(a)(2)(d); Toj-Culpatan v. Holder, 612 F.3d 1088, 1091 (9th Cir. 2010) (per

curiam). We also reject Budianto’s contention that our decision in Sael v. Ashcroft,

386 F.3d 922 (9th Cir. 2004), is a changed circumstance that materially affected his

eligibility for asylum. See Tampubolon v. Holder, 610 F.3d 1056, 1059 n.4 (9th

Cir. 2010). Accordingly, Budianto’s asylum claim fails.

Substantial evidence supports the IJ’s finding, adopted by the BIA, that

Budianto did not suffer harm that rises to the level of past persecution. See

Wakkary v. Holder, 558 F.3d 1049, 1059-60 (9th Cir. 2009). Substantial evidence

also supports the IJ’s finding that, even as a member of a disfavored group,

Budianto failed to demonstrate sufficient individualized risk showing a clear

probability of future persecution in Indonesia. Cf. Sael, 386 F.3d at 927. As noted

2
by the IJ, Budianto has not produced evidence that there is a pattern or practice of

persecution of Chinese Christians in Indonesia. See Lolong v. Gonzales, 484 F.3d

1173, 1180-81 (9th Cir. 2007). Accordingly, Budianto’s withholding of removal

claim fails.

Finally, substantial evidence supports the Board’s denial of CAT relief

because Budianto failed to establish it is more likely than not that he will be

tortured if returned to Indonesia. See Wakkary, 558 F.3d at 1067-68.

PETITION DENIED.