                                                                           FILED
                               NOT FOR PUBLICATION                          SEP 30 2010

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




                               FOR THE NINTH CIRCUIT



ERIC PIETER SOEMAMPOUW;                            Nos. 06-71353
INDRA WATI PINKAN EMAN,                                 06-73767

               Petitioners,                        Agency Nos. A096-229-522
                                                               A097-349-836
  v.

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

               Respondent.



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

                              Submitted September 13, 2010 **

Before:        SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.

       In these consolidated cases, Eric Pieter Soemampouw and Indra Wati Pinkan

Eman, 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 application for asylum, withholding of

          *
             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).
removal, and relief under the Convention Against Torture (“CAT”) in No. 06-

71353, and the BIA’s order denying their motion to reopen proceedings in No. 06-

73767. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for

substantial evidence the agency’s factual findings, Zehatye v. Gonzales, 453 F.3d

1182, 1184-85 (9th Cir. 2006), and review for abuse of discretion the denial of a

motion to reopen, and we review de novo due process claims based on ineffective

assistance of counsel, Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003). We

deny in part and dismiss in part the petition for review in No. 06-71353, and deny

the petition in No. 06-73767.

      The record does not compel the conclusion that petitioners established

changed circumstances excusing the untimely filing of their asylum application.

See 8 C.F.R. § 1208.4(a)(4); Ramadan v. Gonzales, 479 F.3d 646, 656-58 (9th Cir.

2007) (per curiam). Accordingly, petitioners’ asylum claim fails.

      Even as members of a disfavored group, petitioners failed to demonstrate the

requisite individualized risk of persecution. See Hoxha v. Ashcroft, 319 F.3d 1179,

1184-85 (9th Cir. 2003); see also Wakkary v. Holder, 558 F.3d 1049, 1066 (9th

Cir. 2009) (“An applicant for withholding of removal will need to adduce a

considerably larger quantum of individualized-risk evidence to prevail”).

Accordingly, petitioners’ withholding of removal claim fails.


                                         2                           06-71353 / 06-73767
      Substantial evidence supports the agency’s denial of CAT relief because

petitioners have not shown it is more likely than not they would be tortured in

Indonesia. See id. at 1067-68.

      We lack jurisdiction to review petitioners’ unexhausted due process claim

regarding the agency’s failure to serve them with the IJ’s revised decision. See

Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004).

      Lastly, the BIA did not abuse its discretion by denying petitioners’ motion to

reopen based on ineffective assistance of counsel, because petitioners did not

establish they were prejudiced by prior counsel’s actions. See Iturribarria, 321

F.3d at 901-03.

      No. 06-71353: PETITION FOR REVIEW DENIED in part;

DISMISSED in part.

      No. 06-73767: PETITION FOR REVIEW DENIED.




                                          3                           06-71353 / 06-73767
