                             NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                             FOR THE NINTH CIRCUIT
                                                                           OCT 27 2015
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
DANI KURNIAWAN,                                  No. 12-73437

              Petitioner,                        Agency No. A099-418-162

 v.
                                                 MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

              Respondent.


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

                             Submitted October 21, 2015**
                            Stanford Law School, California

Before: PAEZ, MURGUIA, and HURWITZ, Circuit Judges.

      Petitioner Dani Kurniawan, a native and citizen of Indonesia, petitions for

review of the Board of Immigration Appeals’ (BIA) order dismissing his appeal

from the immigration judge’s (IJ) denial of his application for asylum, withholding



        *
             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).
of removal, and relief under the Convention Against Torture (CAT). We deny

Kurniawan’s petition in part and dismiss in part.

1.    Kurniawan first applied for asylum in 2006 as a derivative beneficiary of his

then-wife’s application. Kurniawan filed his own application for asylum in 2009.

Because Kurniawan arrived in the United States in 2000, both of his applications

for asylum were untimely. See 8 U.S.C. § 1158(a)(2)(B); Ramadan v. Gonzales,

479 F.3d 646, 649 (9th Cir. 2007) (explaining that under the statute, an alien

seeking asylum ordinarily “must file an application within one year of arrival in the

United States”). While Kurniawan points to his divorce in 2008 and changed

country conditions in 2006 as changed circumstances, these did not materially

affect Kurniawan’s eligibility for asylum in the years between 2000 and 2006, nor

did they constitute changed circumstances that would excuse the untimely filing of

his 2009 application. See 8 U.S.C. § 1158(a)(2)(D).

2.    Kurniawan’s application for withholding of removal likewise fails. Even

assuming that Kurniawan established past persecution, the IJ’s factual findings

supported the BIA’s conclusion that the Government had rebutted any presumption

that his life or freedom would be threatened upon removal. The IJ found that the

country reports submitted by the Government indicated that ethnically Chinese

citizens and Catholics were safe in Indonesia, that Kurniawan was last mistreated


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in 1986, that Kurniawan’s mistreatment had not occurred with government

acquiescence, and that Kurniawan’s brother had lived safely in Indonesia until he

left in 2009. See Singh v. Holder, 753 F.3d 826, 830 (9th Cir. 2014) (“[The]

presumption is rebutted if the government shows by a preponderance of the

evidence that there has been a fundamental change in circumstances such that [the

petitioner’s] life or freedom would not be threatened on account of a protected

ground upon his return” to his country of origin).

3.    The BIA did not engage in improper factfinding; rather, it properly adopted

the IJ’s factual findings and treated those facts as true in conducting its analysis.

See Berroteran-Melendez v. INS, 955 F.2d 1251, 1258 (9th Cir. 1992) (noting that

BIA may adopt IJ’s factual findings). Nor did the BIA err in relying on country

conditions reports to conclude that any presumption that Kurniawan’s life or

freedom would be threatened upon return to Indonesia had been rebutted. See

Singh, 753 F.3d at 832 (holding that the BIA may rely on country reports, so long

as the evidence is sufficiently individualized to the petitioner’s claim).

4.    Substantial evidence supports the IJ’s and BIA’s conclusion that Kurniawan

was not eligible for CAT relief, as the mistreatment he described did not amount to

torture. Kamalthas v. INS, 251 F.3d 1279, 1284 (9th Cir. 2001) (noting “high bar




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to obtaining relief” under CAT); Nuru v. Gonzales, 404 F.3d 1207, 1224 (9th Cir.

2005) (observing that “torture is more severe than persecution”).

5.    We lack jurisdiction to consider whether Kurniawan established eligibility

for humanitarian asylum because he never raised the issue before the agency. See

Vargas v. INS, 831 F.2d 906, 907–08 (9th Cir. 1987) (“Failure to raise an issue in

an appeal to the BIA constitutes a failure to exhaust remedies with respect to that

question and deprives this court of jurisdiction to hear the matter.”).

PETITION FOR REVIEW DENIED IN PART; DISMISSED IN PART.




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