NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 20 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELISJAH TJONDROWALUYO and No. 13-74309
VINSENSIUS BLANTERAN ROSARI,
Agency Nos. A096-169-517
Petitioners, A096-169-518
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 5, 2017**
Pasadena, California
Before: GRABER, SACK,*** and MURGUIA, Circuit Judges.
This petition for review arises from an immigration proceeding involving
Elisjah Tjondrowaluyo and Vinsensius Blanteran Rosari, a married couple who are
*
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).
***
The Honorable Robert D. Sack, United States Circuit Judge for the
U.S. Court of Appeals for the Second Circuit, sitting by designation.
natives and citizens of Indonesia. Rosari’s claims are derivative of his wife’s
claims. Tjondrowaluyo is Christian and of Chinese ethnicity. She applied for
asylum, withholding of removal, and relief under the Convention against Torture
(CAT). On remand from this court, the Board of Immigration Appeals (BIA)
concluded that Tjondrowaluyo had waived her asylum claim by not bringing it
within one year of her arrival in the United States. The BIA denied
Tjondrowaluyo's CAT and withholding of removal claims on the ground that
Tjondrowaluyo had not shown an individualized risk of persecution.
Tjondrowaluyo timely petitioned for review of only her withholding of removal
claim. “We review the agency’s legal determinations de novo, and factual findings
for substantial evidence.” Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir.
2009). We deny the petition for review.
1. The BIA had substantial evidence to conclude that country conditions for
Chinese Christians in Indonesia have improved in the last 10 years.
Tjondrowaluyo’s challenge on country conditions relies entirely on materials
submitted for the first time to us that were not before the IJ or the BIA. We “shall
decide the petition only on the administrative record on which the order of removal
is based.” 8 U.S.C. § 1252(b)(4)(A). The panel cannot take judicial notice of or
otherwise consider evidence that the petitioner did not submit to the BIA. See
Fisher v. INS, 79 F.3d 955, 963 (9th Cir. 1996) (en banc).
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2. Substantial evidence supports the BIA’s determination that
Tjondrowaluyo failed to establish a sufficiently individualized risk of harm under a
disfavored group analysis. Tjondrowaluyo had the burden to prove individualized
risk. See Sael v. Ashcroft, 386 F.3d 922, 925 (9th Cir. 2004); 8 C.F.R. §
1208.16(b); see also Wakkary, 558 F.3d at 1065 (applying disfavored group
analysis to claims for withholding of removal). We look to whether
Tjondrowaluyo “adduced enough evidence of individual risk, in combination with
enough evidence that the ethnic and religious group to which [s]he belongs is
disfavored in Indonesia, to make out a clear probability of persecution upon
return.” Wakkary, 558 F.3d at 1067. Tjondrowaluyo had to show more evidence
of risk than the petitioner did in Sael, 386 F.3d at 927, because Tjondrowaluyo is
seeking withholding of removal, not asylum, and because the groups to which
Tjondrowaluyo belongs today face less severe treatment than they did in the past.
Wakkary, 558 F.3d at 1066 (“An applicant for withholding of removal will need to
adduce a considerably larger quantum of individualized-risk evidence to prevail
than would an asylum applicant . . . , assuming their disfavored group evidence is
of equal severity and pervasiveness, because the ultimate bar for withholding is
higher than the bar for asylum.”).
Tjondrowaluyo testified to harassment and violence inflicted toward her
personally: a molestation, an attack and beating of her and her parents, and an
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attempted rape, all accompanied by references to her Chinese ethnicity. Her
testimony provided some evidence of an individualized threat. But Tjondrowaluyo
offers no argument to us about how those past experiences meet the specific
burden to show individualized future risk. “Arguments made in passing and
inadequately briefed are waived.” Maldonado v. Morales, 556 F.3d 1037, 1048
n.4 (9th Cir. 2009). Because Tjondrowaluyo fails to offer any real argument to
satisfy her specific, high burden, Tjondrowaluyo is not eligible for withholding
under a disfavored group analysis.
3. Tjondrowaluyo also argues that the BIA failed to assess the combined
effect of the harms she experienced when determining that her past suffering did
not rise to the level of persecution. But to have shown past persecution,
Tjondrowaluyo also must have established that “the persecution was committed by
the government, or by forces that the government was unable or unwilling to
control.” Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir. 2010).
Tjondrowaluyo offers no argument to show how she met her burden on that
element of past persecution, and her challenge therefore fails.
Petition DENIED.
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