Jahotman Sihotang v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION AUG 14 2012

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

FOR THE NINTH CIRCUIT

JAHOTMAN SIHOTANG, No. 10-70315

Petitioner, Agency No. A078-020-310

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

Respondent.

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

Submitted August 8, 2012 **

Before: ALARCÓN, BERZON, and IKUTA, Circuit Judges.

Jahotman Sihotang, a native and citizen of Indonesia, petitions for review of

the Board of Immigration Appeals’ (“BIA”) order denying his motion to

reconsider. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for an

abuse of discretion the BIA’s denial of a motion to reconsider, Cano-Merida v.

*
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).
INS, 311 F.3d 960, 964 (9th Cir. 2002), and we review de novo constitutional

challenges to a statute, Munoz v. Ashcroft, 339 F.3d 950, 954 (9th Cir. 2003). We

deny in part and dismiss in part the petition for review.

The BIA denied Sihotang’s motion as untimely. Sihotang does not contest

this dispositive finding.

Moreover, the BIA did not abuse its discretion in denying Sihotang’s motion

on the alternative grounds that, even as an Indonesian Christian, Sihotang failed to

make a prima facie showing of any individualized risk to establish a clear

probability of persecution. See Wakkary v. Holder, 558 F.3d 1049, 1055-56 (9th

Cir. 2009); Halim v. Holder, 590 F.3d 971, 979 (9th Cir. 2009). We do not

consider Sihotang’s argument that he was persecuted on account of his Chinese

ethnicity because he raises it for the first time before this court.

We lack jurisdiction to review Sihotang’s contentions related to asylum

because his motion to reconsider only raised his withholding of removal claim.

See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). Sihotang’s due process

claim related to asylum fails for the same reason.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

2 10-70315