Ardian Setiawan 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NOT FOR PUBLICATION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
ARDIAN SETIAWAN,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 09-70894
Agency No. A098-269-281
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 10, 2012**
Before: WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.
Ardian Setiawan, 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
FILED
SEP 18 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 3 --

09-70894 2
jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the
agency’s factual findings and de novo questions of law. 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 Setiawan established
extraordinary circumstances excusing his untimely asylum application. See
8 C.F.R.§ 1208.4(a)(5). Accordingly, Setiawan’s asylum claim fails.
Substantial evidence supports the agency’s finding that the harms Setiawan
experienced in Indonesia do not rise to the level of persecution. See Wakkary, 558
F.3d at 1059-60 (being twice beaten, robbed, and accosted by a threatening mob
did not compel finding of past persecution). In addition, even as a member of a
disfavored group, Setiawan has not shown sufficient individualized risk to
establish a clear probability of persecution in Indonesia. See id. at 1066 (“[a]n
applicant for withholding of removal will need to adduce a considerably larger
quantum of individualized-risk evidence”). Further, the record does not compel
the conclusion that there is a pattern or practice of persecution of ethnic Chinese in
Indonesia. See id. at 1061-62. Accordingly, Setiawan’s withholding of removal
claim fails.
Finally, substantial evidence supports the agency’s denial of CAT relief
because Setiawan failed to establish it is more likely than not that he would be

-- 2 of 3 --

09-70894 3
tortured in Indonesia by or with the consent or acquiescence of the Indonesian
government. See id. at 1067-68.
PETITION FOR REVIEW DENIED.

-- 3 of 3 --