                                                                             FILED
                                 NOT FOR PUBLICATION                          JUL 14 2011

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




                                 FOR THE NINTH CIRCUIT



WALTER ROY SIAHAAN; RONNY                            Nos. 08-70923
JIMMY SIAHAAN,                                            08-73851

                  Petitioners,                       Agency Nos.     A077-302-514
                                                                     A077-302-517
  v.

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

                  Respondent.



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

                                  Submitted July 12, 2011 **

Before:        SCHROEDER, ALARCÓN, and LEAVY, Circuit Judges.

       Walter Roy Siahaan and Ronny Jimmy Siahaan, natives and citizens of

Indonesia, petition for review of the Board of Immigration Appeals’ (“BIA”) order

dismissing their appeal from an immigration judge’s (“IJ”) decision denying their

applications for asylum, withholding of removal, and relief under the Convention

          *
             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).
Against Torture (“CAT”) (No. 08-70923), and petition for review of the BIA’s

decision denying their motion to reopen (No. 08-73851). 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), and we review

for abuse of discretion the agency’s denial of a motion to reopen, Najmabadi v.

Holder, 597 F.3d 983, 986 (9th Cir. 2010). We deny the petitions for review.

      In pursuing their underlying claims during removal proceedings, petitioners

did not argue to the IJ or the BIA that they suffered past persecution in Indonesia

or that anything happened to them in Indonesia on account of their religion or

ethnicity. Rather, based on news reports and stories they heard after coming to the

United States, they argued – as they do now – that Walter fears he will be harmed

in Indonesia due to his Christianity, and that Ronny fears he will be harmed in

Indonesia due to his Christianity and Chinese ethnicity.

      With respect to Walter’s asylum claim, the record does not compel the

conclusion that he established changed circumstances excusing the untimely filing

of his asylum application. See 8 C.F.R. § 1208.4(a)(4). Accordingly, Walter’s

asylum claim fails as time-barred.

      Further with respect to Walter’s withholding of removal claim, even as a

member of a disfavored group, the record does not compel the conclusion that he


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established a clear probability of persecution, because he failed to demonstrate his

general, undifferentiated fear of harm is distinct from the fears felt by all other

Christians in Indonesia. See Lolong v. Gonzales, 484 F.3d 1173, 1181 (9th Cir.

2007) (en banc) (“In sum, [petitioner] has provided no evidence that [he] has been,

or is likely to be, specifically targeted for persecution by any individual or group in

Indonesia.”). Accordingly, Walter’s withholding of removal claim fails.

      Similarly, with respect to Ronny’s asylum claim, even as a member of two

disfavored groups, the record does not compel the conclusion that he has

established a well-founded fear of persecution, because Ronny failed to show that

his general, undifferentiated fear of harm is distinct from the fears felt by all other

Chinese Christians in Indonesia. See id. Accordingly, Ronny’s asylum claim fails.

      Because Ronny failed to establish eligibility for asylum, he necessarily

cannot meet the more stringent standard for withholding of removal. See Zehatye

v. Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006).

      Finally, with respect to both Walter and Ronny’s CAT claims, substantial

evidence supports the agency’s denial of relief because petitioners failed to

establish it is more likely than not that they will be tortured if returned to

Indonesia. See Wakkary, 558 F.3d at 1067-68.




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      In petition no. 08-73851, petitioners contend the BIA erred by denying their

motion to reopen based on Walter’s “new factual evidence,” i.e., Walter’s memory

of the death at birth of his twin daughters in Indonesia over 19 years earlier. The

BIA did not abuse its discretion in denying petitioners’ motion to reopen where

petitioners failed to demonstrate their additional evidence was previously

unavailable. See 8 C.F.R. § 1003.2(c)(1); Bhasin v. Gonzales, 423 F.3d 977, 984

(9th Cir. 2005) (both statute and regulation require that evidence introduced

through a motion to reopen “must not have been available to be presented at the

former hearing”) (citation and internal quotation omitted). Further, contrary to

petitioners’ contention, the BIA adequately considered the evidence presented with

their motion to reopen. See Najmabadi, 597 F.3d at 990-91.

      PETITIONS FOR REVIEW DENIED.




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