Fnu Yovivi v. Holder , 459 F. App'x 593 ( 2011 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT NOV 18 2011
MOLLY C. DWYER, CLERK
U.S . CO U RT OF AP PE A LS
FNU YOVIVI, No. 07-72822
Petitioner, Agency No. A099-339-622
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 11, 2011**
San Francisco, California
Before: HUG, KLEINFELD, and W. FLETCHER, Circuit Judges.
Yovivi, a native and citizen of Indonesia, petitions for review of the Board
of Immigration Appeals' (BIA) order dismissing her appeal from an immigration
judge's decision denying her application for asylum and withholding of removal.
Our jurisdiction is governed by 8 U.S.C. y 1252. We review for substantial
*
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).
evidence factual findings. Zehatye v. Gonzales, 453 F.3d 1182, 1185 (9th Cir.
2006). We deny the petition for review.
We have jurisdiction to review the BIA's timeliness determination because
the BIA improperly required corroboration of Yovivi's alleged relationship with an
immigration consultant to assist her in timely preparing her application. See Singh
v. Holder, 649 F.3d 1161 (9th Cir. 2011). However, the BIA also reached the
merits of Yovivi's claim that 'extraordinary circumstances' excuse her untimely
asylum application, finding Yovivi's proffered evidence insufficient to merit relief.
Yovivi provided unsubstantiated testimony and an unauthenticated letter allegedly
from an immigration consultant to show she attempted to timely file for asylum.
The evidence Yovivi provided does not compel the conclusion that she
established changed or extraordinary circumstances sufficient to excuse the delay
in filing her asylum application. See 8 C.F.R. y 1208.4(a)(4), (5). Thus, Yovivi's
asylum claim fails.
Substantial evidence supports the agency's finding that the harm Yovivi
suffered did not rise to the level of persecution. See Waµµary v. Holder, 558 F.3d
1040, 1059-60 (9th Cir. 2009). Substantial evidence also supports the agency's
finding that, even under a disfavored group analysis, Yovivi did not present
sufficient evidence of an individualized risµ to demonstrate a clear probability of
2 07-72822
future persecution. See id. at 1066. The record does not compel the conclusion
that there is a pattern or practice of persecution of Chinese Indonesians or Chinese
women in Indonesia. See Lolong v. Gonzales, 484 F.3d 1173, 1180-81 (9th Cir.
2007) (en banc). Accordingly, Yovivi's withholding of removal claim fails.
PETITION DENIED.
3 07-72822
FILED
Yovivi v. Holder, No. 07-72822 NOV 18 2011
MOLLY C. DWYER, CLERK
KLEINFELD, Circuit Judge, concurring: U.S . CO U RT OF AP PE A LS
I concur.
I write separately because, although we are compelled to exercise
jurisdiction by circuit precedent, I thinµ that line of authority is mistaµen. Were we
not bound by circuit authority, I would dismiss for lacµ of jurisdiction.
Our court has concluded that y 106 of the REAL ID Act restores appellate
jurisdiction in diverse circumstances.1 I agree with Judge O'Scannlain's remarµ in
Lin v. Holder that 'we have stucµ our noses further into disputes in which
Congress has forbidden us a role.'2 All ten of our sister circuits to consider the
issue have rejected the more expansive approach to jurisdiction adopted by our
1
See, e.g., Taslimi v. Holder, 590 F.3d 981, 984-86 (9th Cir. 2010)
('reasonable period' requirement for the 'changed circumstances' exception to the
asylum application deadline); Barrios v. Holder, 581 F.3d 849, 857 (9th cir. 2009)
(threshold requirements for special rule cancellation in the Nicaraguan Adjustment
and Central American Relief Act); Khan v. Holder, 584 F.3d 773, 779-80 (9th Cir.
2009) (application of the definition of 'terrorist organization' for the terrorist bar
to asylum); Husyev v. Muµasey, 528 F.3d 1172, 1178-79 (9th Cir. 2008)
('extraordinary circumstances' exception to the asylum application deadline);
Khunaverdiants v. Muµasey, 548 F.3d 760, 764-66 (9th Cir. 2008) (timeliness
determinations for asylum applications); Ghahremani v. Gonzales, 498 F.3d 993,
998-99 (9th Cir. 2007) (the 'due diligence' requirement to reopen an immigration
case); Ramadan v. Gonzales, 479 F.3d 646 (9th Cir. 2007) (per curiam), reh'g en
banc denied sub nom. Ramadan v. Keisler, 504 F.3d 973 (9th Cir. 2007) ('changed
circumstances' exception to the asylum application deadline).
2
610 F.3d 1093, 1099 (9th Cir. 2010) (O'Scannlain, J., concurring).
court.3 Accordingly, although the memorandum disposition we issue today is
correct under circuit precedent, I thinµ a better reading of the law would be that
taµen by our sister circuits.
3
Lumataw v. Holder, 582 F.3d 78, 86 (1st Cir. 2009); Chen v. U.S.
Dep't of Justice, 434 F.3d 144, 154 (2d Cir. 2006); Suµwanputra v. Gonzales, 434
F.3d 627, 635 (3d Cir. 2006); Gomis v. Holder, 571 F.3d 353, 359 (4th Cir. 2009);
Zhu v. Gonzales, 493 F.3d 588, 596 n.31 (5th Cir. 2007); Almuhtaseb v. Gonzales,
453 F.3d 743, 747-48 (6th Cir. 2006); Viracacha v. Muµasey, 518 F.3d 511, 515-
16 (7th Cir. 2008); Ignatova v. Gonzales, 430 F.3d 1209, 1214 (8th Cir. 2005);
Ferry v. Gonzales, 457 F.3d 1117, 1130 (10th Cir. 2006); Chacon v. U.S. Att'y
Gen., 427 F.3d 954, 956-57 (11th Cir. 2005) (per curiam).