Tony Nurdin v. ERIC H. HOLDER, Jr., Attorney General

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TONY NURDIN,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 10-70324
Agency No. A099-737-412
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 15, 2012**
Before: CANBY, GRABER, and M. SMITH, Circuit Judges.
Tony Nurdin, a native and citizen of Indonesia, petitions for review of the
Board of Immigration Appeals’ order dismissing his appeal from an immigration
judge’s decision denying his application for asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”). We have jurisdiction
FILED
MAY 23 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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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), and we review
de novo due process claims, Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir.
2004). We deny the petition for review.
The agency concluded that Nurdin failed to establish past persecution
because his experiences, including harassment, robberies, and damage to his home
during the 1998 riots, did not rise to the level of persecution. Taking Nurdin’s
testimony as true, the record does not compel a contrary conclusion. See Wakkary,
558 F.3d at 1059-60; Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir. 2003).
Additionally, substantial evidence supports the agency’s conclusion that Nurdin
failed to demonstrate the requisite individualized risk to establish a well-founded
fear of future persecution. See Halim v. Holder, 590 F.3d 971, 979 (9th Cir. 2009);
cf. Sael v. Ashcroft, 386 F.3d 922, 927-29 (9th Cir. 2004). Accordingly, his
asylum claim fails.
Because Nurdin failed to establish eligibility for asylum, he necessarily fails
to meet the higher standard of eligibility for withholding of removal. See Zehatye
v. Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006).
In addition, the record does not compel the conclusion that Nurdin faces a
likelihood of torture by, or with the consent or acquiescence of, the Indonesian

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government. See Wakkary, 558 F.3d at 1067-68. Accordingly, his CAT claim
fails.
Finally, given our above conclusions, we reject Nurdin’s due process
contention regarding the exclusion of his brother’s testimony, which relates only to
the agency’s alternative credibility finding. See Lata v. INS, 204 F.3d 1241, 1246
(9th Cir. 2006) (requiring prejudice to prevail on due process claim).
PETITION FOR REVIEW DENIED.

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