Samuel Rantung v. Eric Holder, Jr.

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 27, 2010
• Docket: 09-73076
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION DEC 27 2010

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

FOR THE NINTH CIRCUIT

SAMUEL MUSAK RANTUNG, No. 09-73076

Petitioner, Agency No. A096-351-718

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

Respondent.

HANA LIMBAT, No. 09-73085

Petitioner, Agency No. A096-351-717

v.

ERIC H. HOLDER, Jr., Attorney General,

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

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Submitted December 14, 2010 **

Before: GOODWIN, WALLACE, and W. FLETCHER, Circuit Judges.

In these consolidated cases, Hana Limbat and Samuel Musak Rantung,

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 Limbat’s application for asylum, withholding of removal, and

relief under the Convention Against Torture (“CAT”) (No. 09-73085), and the

BIA’s order denying Rantung’s motion to reopen removal proceedings (No. 09-

73076). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial

evidence the agency’s factual findings, Wakkary v. Holder, 558 F.3d 1049, 1056

(9th Cir. 2009), we review for abuse of discretion the denial of a motion to reopen,

and we review de novo due process claims, including ineffective assistance of

counsel claims, Ram v. Mukasey, 529 F.3d 1238, 1241 (9th Cir. 2008). We deny

both petitions for review.

With respect to No. 09-73085, the record does not compel the conclusion

that changed or extraordinary circumstances excused the untimely filing of

Limbat’s asylum application. See 8 C.F.R. § 1208.4(a)(4), (5); Ramadan v.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

2 09-73076 Gonzales, 479 F.3d 646, 656-58 (9th Cir. 2007) (per curiam); Tampubolon v.

Holder, 610 F.3d 1056, 1059 (9th Cir. 2010) (case law decided subsequent to the

filing of an asylum application is not a changed circumstance that excuses untimely

filing). We reject Limbat’s contention that the agency violated her rights by

refusing to equitably toll the time limitation for filing her asylum application. See

Hernandez-Mezquita v. Ashcroft, 293 F.3d 1161, 1163-65 (9th Cir. 2002)

(rejecting equal protection challenge to statutory time limitation where limitation

served a rational purpose; requiring error for due process violation). Accordingly,

Limbat’s asylum claim fails.

Substantial evidence supports the agency’s determination that Limbat failed

to establish past persecution because the harms she personally suffered did not rise

to the level of persecution, see Wakkary, 558 F.3d at 1059-60, and the record does

not compel the conclusion that her father was persecuted on account of a protected

ground, see Padash v. INS, 358 F.3d 1161, 1166-67 (9th Cir. 2004) (petition

denied in part because no evidence incidents were part of a pattern of harm against

petitioner’s family on the basis of religion). Even as a member of a disfavored

group, the record does not compel the conclusion that Limbat established sufficient

individualized risk to show a clear probability of persecution. See Wakkary, 558

F.3d at 1066 (“An applicant for withholding of removal will need to adduce a

3 09-73076 considerably larger quantum of individualized-risk evidence to prevail”). Thus,

Limbat’s withholding of removal claim fails.

Substantial evidence also supports the agency’s conclusion that Limbat is

not eligible for CAT relief because she failed to show it is more likely than not she

would be tortured if removed to Indonesia. See id. at 1067-68.

With respect to No. 09-73076, the BIA did not abuse its discretion in

denying Rantung’s motion to reopen as untimely because Rantung filed it over five

years after the BIA issued its final removal order, see 8 C.F.R. § 1003.2(c)(2), and

Rantung and failed to submit material evidence of changed circumstances in

Indonesia that would excuse the late filing, see 8 C.F.R. § 1003.2(c)(3)(ii); see also

Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir. 2004) (requiring circumstances to

have changed sufficiently that a petitioner who previously did not have a legitimate

claim for asylum now has a well-founded fear of future persecution).

Finally, the BIA did not abuse its discretion by denying Rantung’s motion

to reopen based on ineffective assistance of counsel, because he did not establish

he was prejudiced by counsel’s actions. See Iturribarria v. INS, 321 F.3d 889,

901-903 (9th Cir. 2003).

No. 09-73085: PETITION FOR REVIEW DENIED.

No. 09-73076: PETITION FOR REVIEW DENIED.

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