                             NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                         FILED
                             FOR THE NINTH CIRCUIT                            AUG 9 2011

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

FERRY SANTOSO,                                    No. 08-73090

               Petitioner,                        Agency No. A094-990-719

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

               Respondent.



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

                             Submitted August 2, 2011 **

Before:        LEAVY, IKUTA, and N.R. SMITH, Circuit Judges.

       Ferry Santoso, a native and citizen of Indonesia, petitions for review of the

Board of Immigration Appeals’ order dismissing his appeal from an immigration

judge’s decisions denying his motion for a continuance and his application for

asylum, withholding of removal, and protection under the Convention Against


          *
             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).
Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review de

novo questions of law and for substantial evidence factual findings. Husyev v.

Mukasey, 528 F.3d 1172, 1177 (9th Cir. 2008). We deny in part and dismiss in

part the petition for review.

      The record does not compel the conclusion that Santoso filed his application

within a reasonable period of time after his lawful status expired. See Husyev, 528

F.3d at 1181-82. The record also does not compel the conclusion that Santoso

otherwise established changed or extraordinary circumstances excusing his

untimely application. See 8 C.F.R. §§ 1208.4(a)(4), (5). In addition, Santoso’s

conclusory assertions that the agency failed to adequately articulate reasons for

finding he did not qualify for an exception, and failed to adequately question him

regarding changed country conditions and circumstances accounting for his late

filing, are belied by the record. Accordingly, Santoso’s asylum claim fails.

      Substantial evidence supports the agency’s determination that, considered

individually or cumulatively, Santoso’s experiences did not rise to the level of

persecution. See Wakkary v. Holder, 558 F.3d 1049, 1059-60 (“discriminatory

mistreatment” of Indonesian Chinese Christian, including beatings and robberies

and being accosted by a hostile mob, did not compel a finding of past persecution);

Fisher v. INS, 79 F.3d 955, 961-62 (9th Cir. 1996) (en banc) (persecution does not


                                          2                                    08-73090
include “mere discrimination, as offensive as it may be,” including government

enforcement of discriminatory regulations). Substantial evidence also supports the

agency’s conclusion that Santoso failed to establish an individualized risk of

persecution, even under disfavored-group analysis. See Halim v. Holder, 590 F.3d

971, 979 (9th Cir. 2009) (petitioner failed to show he was individually targeted or

likely to be individually targeted where he “failed to offer any evidence that

distinguishes his exposure from those of all other ethnic Chinese Indonesians”); cf.

Sael v. Ashcroft, 386 F.3d 922, 927-29 (9th Cir. 2004). Further, the record does

not compel the conclusion that there is a pattern or practice of persecution against

ethnic Chinese Christians in Indonesia. See Wakkary, 558 F.3d at 1060-62.

Accordingly, we deny the petition as to Santoso’s withholding of removal claim.

      We lack jurisdiction to review Santoso’s contentions regarding his wife and

child because he failed to raise these claims to the BIA. See Barron v. Ashcroft,

358 F.3d 674, 678 (9th Cir. 2004) (no jurisdiction over claims not presented

below). We also decline to consider the new evidence Santoso references in his

opening brief because our review is limited to the administrative record underlying

the IJ’s decision. See Fisher, 79 F.3d at 963.




                                          3                                      08-73090
      Apart from a conclusory assertion, Santoso does not make any argument

challenging the agency’s denial of CAT relief. See Martinez-Serrano v. INS, 94

F.3d 1256, 1259-60 (9th Cir. 1996).

      Finally, we decline to consider Santoso’s claim that the agency erred in

denying his request for a continuance, as well as his due process claims. See

Bazuaye v. INS, 79 F.3d 118, 120 (9th Cir. 1996) (per curiam) (“Issues raised for

the first time in the reply brief are waived.”).

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




                                            4                                   08-73090
