                                                                           FILED
                             NOT FOR PUBLICATION                            MAR 19 2013

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




                             FOR THE NINTH CIRCUIT



FNU MAKTINUS,                                    No. 11-72202

               Petitioner,                       Agency No. A088-129-180

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

               Respondent.



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

                             Submitted March 12, 2013 **

Before:        PREGERSON, REINHARDT, and W. FLETCHER, Circuit Judges.

       Maktinus, a native and citizen of Indonesia, petitions for review of a 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


          *
             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).
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 deny the

petition for review.

      Substantial evidence supports the agency’s finding that the harms Maktinus

suffered in Indonesia, even cumulatively, did not rise to the level of persecution.

See id. at 1059-60; Halim v. Holder, 590 F.3d 971, 976 (9th Cir. 2009) (incidents

of harm petitioner suffered due to his Chinese ethnicity did “not compel a finding

of past persecution”). Absent past persecution, he does not have a rebuttable

presumption of a well-founded fear of future persecution. Substantial evidence

also supports the agency’s determination that, even under a disfavored group

analysis, Maktinus failed to demonstrate sufficient individualized risk of harm to

establish a well-founded fear. See Halim, 590 F.3d at 975-77. Contrary to

Maktinus’ contention, the agency addressed his claim that he suffered harm on

account of his Chinese ethnicity. Consequently, his asylum claim fails.

      Because Maktinus failed to meet the lower burden of proof for asylum, his

withholding of removal claim necessarily fails. See Zehatye v. Gonzales, 453 F.3d

1182, 1190 (9th Cir. 2006).




                                          2                                     11-72202
      Finally, substantial evidence supports the agency’s denial of CAT protection

because Maktinus failed to establish it is more likely than not he will be tortured

upon return to Indonesia. See Wakkary, 558 F.3d at 1068-69.

      PETITION FOR REVIEW DENIED.




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