Hendy Ho v. Eric Holder, Jr. , 559 F. App'x 630 ( 2014 )

FILED
NOT FOR PUBLICATION MAR 3 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HENDY RIYANTO HO; FNU LILY, No. 12-72537
Petitioners, Agency Nos. A089-780-547
A089-780-548
v.
ERIC H. HOLDER, Jr., Attorney General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 18, 2014**
Before: ALARCÓN, O’SCANNLAIN, and FERNANDEZ, Circuit Judges.
Hendy Riyanto Ho and FNU Lily, natives and citizens of Indonesia, petition
for review of the Board of Immigration Appeals’ (“BIA”) order dismissing their
appeal from an immigration judge’s decision denying their applications for asylum,
withholding of removal, and relief under the Convention Against Torture (“CAT”).
*
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).
We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence
the BIA’s factual findings. Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir.
2009). We deny the petition for review.
The record does not compel the conclusion that the discrimination,
harassment, and other incidents of harm petitioners experienced in Indonesia, even
considered cumulatively, rose to the level of persecution. See Halim v. Holder,
590 F.3d 971, 975-76 (9th Cir. 2009); Nagoulko v. INS, 333 F.3d 1012, 1018 (9th
Cir. 2003). In addition, substantial evidence supports the agency’s finding that,
even under a disfavored group analysis, petitioners failed to establish sufficient
individualized risk of harm to demonstrate a well-founded fear of persecution. See
Halim, 590 F.3d at 977-79; cf. Sael v. Ashcroft, 386 F.3d 922, 929 (9th Cir. 2007).
We reject petitioners’ contentions that the BIA failed to adequately consider their
claims of non-physical harm or otherwise failed to adequately consider the
evidence in the record. See Larita-Martinez v. INS, 220 F.3d 1092, 1096 (9th Cir.
2000) (petitioner must overcome the presumption that the agency considered all
the evidence). We also reject petitioners’ contention that the BIA did not apply the
disfavored group analysis correctly to their claim. Accordingly, their asylum claim
fails.
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Because petitioners have not established eligibility for asylum, they
necessarily cannot meet the more stringent standard for withholding of removal.
See Zehatye v. Gonzalez, 453 F.3d 1182, 1190 (9th Cir. 2006). We reject
petitioners’ contention that the BIA failed to apply a disfavored group analysis to
their withholding of removal claim.
Finally, substantial evidence supports the agency’s denial of CAT relief
because petitioners failed to establish that it is more likely than not that they will
be tortured by or with the acquiescence of a public official or other person acting in
an official capacity if they return to Indonesia. See Wakkary, 558 F.3d at 1067-68.
PETITION FOR REVIEW DENIED.
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