                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                         FILED
                            FOR THE NINTH CIRCUIT                           JUN 13 2013

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

HILARJUS JOHNY MONTOLALU,                        No. 09-70582

              Petitioner,                        Agency No. A095-634-722

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

              Respondent.



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

                        Argued and Submitted June 7, 2013
                              Pasadena, California

Before: GOULD and N.R. SMITH, Circuit Judges, and DU, District Judge.**




       Hilarjus Johny Montolalu petitions for review of the decisions by the Board

of Immigration Appeals (BIA) denying his application for asylum, withholding of

removal, and relief under the Convention Against Torture (CAT). The BIA

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
              The Honorable Miranda Du, District Judge for the U.S. District Court
for the District of Nevada, sitting by designation.
affirmed the immigration judge’s (IJ) denial of any relief, because (1) Montolalu’s

application for asylum was time barred, (2) Montolalu’s testimony was not

credible, and (3) Montolalu failed to establish clear probability of future

persecution. We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1), and we deny

the petition.

1.     The BIA did not err in concluding that Montolalu’s asylum application was

untimely, because he failed to show that the country conditions had materially

changed since Montolalu arrived in the United States in November 2001. See

Vahora v. Holder, 641 F.3d 1038, 1044 (9th Cir. 2011).1

2.     We must accept the BIA’s adverse credibility finding “as long as one of the

identified grounds underlying the credibility finding is supported by substantial

evidence and goes to the heart of [Montolalu’s] claims.” Kin v. Holder, 595 F.3d

1050, 1055 (9th Cir. 2010). Here, the BIA found Montolalu not credible for

several reasons, in particular Montolalu’s testimony regarding the attack on

December 25, 2000. The inconsistencies in Montolalu’s testimony and between

his testimony and application go to the heart of his asylum claim. See Zamanov v.



       1
        Petitioner argued that the NSEERS special registration requirement
constituted changed circumstances. However, at oral argument Petitioner
withdrew this argument.


                                           2
Holder, 649 F.3d 969, 973 (9th Cir. 2011) (“Material alterations in the applicant’s

account of persecution are sufficient to support an adverse credibility finding.”)

Montolalu was confronted with the inconsistencies and the BIA reasonably

rejected his explanation. See Tekle v. Mukasey, 533 F.3d 1044, 1055 (9th Cir.

2008). Therefore, substantial evidence supports the BIA’s determination that

Montolalu was not credible with regard to his claim for withholding of removal.

The record does not compel a contrary conclusion.

      Absent credible testimony, the BIA did not err in concluding that Montolalu

failed to produce sufficient evidence to show that he is more likely than not to be

tortured if he returns to Indonesia. Almaghzar v. Gonzales, 457 F.3d 915, 922-23

(9th Cir. 2006).

3.    Even though the BIA did not have the benefit of this court’s cases in

Tampubolon v. Holder, 610 F.3d 1056, 1060 (9th Cir. 2010), or Wakkary v.

Holder, 558 F.3d 1049, 1065 (9th Cir. 2009), the BIA’s conclusion that Montolalu

did not qualify for withholding of removal under a disfavored group analysis was

not error. The BIA concluded that Montolalu (1) did not establish any claim of

past persecution based upon a lack of credibility and (2) did not establish any claim

of future persecution, because his similarly situated family remains in Indonesia

unharmed. Those findings preclude a conclusion that Montolalu can show a


                                          3
sufficient individual risk of persecution, which is required under the disfavored

group analysis. See Wakkary, 558 F.3d at 1066 (“An applicant for withholding of

removal will need to adduce a considerably larger quantum of individualized-risk

evidence to prevail than would an asylum applicant . . . .”).

      PETITION FOR REVIEW DENIED.




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