                                                                            FILED
                             NOT FOR PUBLICATION                             JUL 29 2014

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


RELINA SIANIPAR,                                  No. 09-73306

               Petitioner,                        Agency No. A099-346-631

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

               Respondent.


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

                              Submitted July 22, 2014**

Before:        GOODWIN, CANBY, and CALLAHAN, Circuit Judges.

       Relina Sianipar, a native and citizen of Indonesia, petitions for review of the

Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from the

immigration judge’s decision denying her application for asylum, withholding of

removal, relief under the Convention Against Torture (“CAT”), and cancellation 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. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for

substantial evidence the agency’s factual findings. Nagoulko v. INS, 333 F.3d

1012, 1015 (9th Cir. 2003). We deny in part and dismiss in part the petition for

review.

      Sianipar argued to the BIA that her untimely asylum application should be

excused based on changed country conditions in Indonesia, and based on the

extraordinary circumstances of her pregnancy and ineffective assistance of counsel.

Among other reasons, the BIA rejected Sianipar’s changed country conditions and

pregnancy arguments because it found that Sianipar failed to file her asylum

application within a reasonable period of time. The BIA rejected Sianipar’s

ineffective assistance of counsel argument because she did not meet the threshold

requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). Sianipar does

not raise any challenges to these findings. See Martinez-Serrano v. INS, 94 F.3d

1256, 1259-60 (9th Cir. 1996). We lack jurisdiction to consider Sianipar’s

equitable tolling and due process arguments regarding the one-year bar because she

did not raise them to the BIA. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th

Cir. 2004) (court lacks jurisdiction to review claims not raised to the agency).

Thus, we deny the petition as to Sianipar’s asylum claim.




                                          2                                    09-73306
         With respect to Sianipar’s claim for withholding of removal, substantial

evidence supports the BIA’s determination that the harm suffered by Sianipar does

not rise to the level of persecution. See Nagoulko, 333 F.3d at 1016-17. Even

under a disfavored group analysis, substantial evidence supports the BIA’s

determination that Sianipar failed to establish sufficient individualized risk of

persecution to establish it is more likely than not that she would be persecuted. See

Halim v. Holder, 590 F.3d 971, 979 (9th Cir. 2009) (petitioner failed to

demonstrate sufficient evidence of individualized risk of harm under a disfavored

group analysis to establish a well-founded fear of future persecution); Wakkary v.

Holder, 558 F.3d 1049, 1066 (9th Cir. 2009) (“[a]n applicant for withholding of

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

evidence to prevail than would an asylum applicant”). We reject Sianipar’s

contention that this case should be remanded in light of Tampubolon v. Holder,

610 F.3d 1056 (9th Cir. 2010). Thus, Sianipar’s withholding of removal claim

fails.

         We lack jurisdiction over Sianipar’s CAT claim because she did not exhaust

it before the BIA. See Barron, 358 F.3d at 677-78.




                                            3                                   09-73306
      We do not consider the new exhibit Sianipar attached to her opening brief

because our review is limited to the administrative record before the BIA. See

Fisher v. INS, 79 F.3d 955, 963 (9th Cir. 1996) (en banc).

      We lack jurisdiction over Sianipar’s claim that the BIA misapplied the

hardship standard to the facts of her case and did not consider this court’s decision

in Tampubolon, because the claim does not raise a colorable constitutional issue.

See Martinez-Rosas v. Gonzales, 424 F.3d 926, 929-30 (9th Cir. 2005) (no

colorable constitutional claim where petitioner argued the agency erred in finding

she did not meet the “exceptional and extremely unusual hardship” requirement).

Similarly, we reject Sianipar’s due process claim based on family unity

considerations. See id.; see also De Mercado v. Mukasey, 566 F.3d 810, 816 (9th

Cir. 2009) (rejecting due process argument regarding hardship determination based

on family unity considerations).

      Finally, we lack jurisdiction to review the claim that the IJ inappropriately

questioned Sianipar and her counsel because that claim was not exhausted before

the agency. See Barron, 358 F.3d at 677-78.

      PETITION FOR REVIEW IS DENIED in part; DISMISSED in part.




                                          4                                    09-73306
