                Not for Publication in West's Federal Reporter
               Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                        For the First Circuit
                            ____________________

No. 05-1337

                               BUDI IRAWAN,

                                Petitioner,

                                      v.


                        ALBERTO GONZALES,
              Attorney General of the United States,

                              Respondent.
                         ____________________

                ON PETITION FOR REVIEW OF AN ORDER
               OF THE BOARD OF IMMIGRATION APPEALS
                       ____________________

                                   Before

                Lynch and Howard, Circuit Judges,
                        and Restani,* Judge.
                       _____________________


     Haian Lin on brief for petitioner.
     Robbin K. Blaya, Attorney, Office of Immigration Litigation,
Peter Keisler, Assistant Attorney General, Civil Division, and
Terri J. Scadron, Assistant Director, on brief for respondent.


                         _____________________

                           November 21, 2005
                         _____________________




     *
      Chief Judge of the United States Court of International
Trade, sitting by designation.
                 Per Curiam.     Petitioner, Budi Irawan, is a twenty-seven-

year-old citizen of Banyuwangi, Indonesia, who entered the United

States      on    February     4,     2001,   as    a   non-immigrant      visitor    for

pleasure.        He remained in the United States after his visa expired

on   August       3,   2001,    and    was    detained       by   the   Immigration   and

Naturalization Service, now part of the Department of Homeland

Security, on June 20, 2002, for violating 8 U.S.C. § 1227(a)(1)(B)

(West Supp. 2004).             Prior to his removal hearing, the Petitioner

conceded that he was subject to removal, and the Immigration Judge

(“IJ”) ordered his return to Indonesia.                      The Board of Immigration

Appeals (“BIA”) adopted the IJ’s opinion, in which the IJ found

that       omissions    and     inconsistencies         in    Petitioner’s    testimony

rendered incredible his claim that he would face an objective

threat of persecution or torture justifying withholding of removal.

                 Petitioner appeals the BIA’s dismissal of his application

for asylum under 8 U.S.C. § 1158 (2000), withholding of removal

under 8 U.S.C. § 1231(b)(3) (2000), and withholding of removal

under the Convention Against Torture (the “Convention”).1                              We

affirm the judgment of the BIA.

                                              I.

                 Because the BIA adopted the IJ’s decision, we review the


       1
      The Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85,
was implemented by the Foreign Affairs Reform and Restructuring Act
of 1998, Pub. L. 105-277, 112 Stat. 2681 (codified at 8 U.S.C. 1231
(2000)).

                                              -2-
IJ’s decision as the BIA’s final decision.           Hernandez-Barrera v.

Ashcroft,    373    F.3d   9,   20   (1st   Cir.   2004).       The   factual

determinations of the BIA’s adopted decision may be overturned only

if “any reasonable adjudicator would be compelled to conclude to

the   contrary.”       8   U.S.C.    §   1252(b)(4)(B)      (2000).    Legal

determinations of the BIA are reviewed de novo, but with some

deference to the BIA’s interpretation of the INA.               Da Silva v.

Ashcroft, 394 F.3d 1, 5 (1st Cir. 2005).

                                     II.

            Absent changed or extraordinary circumstances, a foreign

national may not apply for asylum more than one year after arriving

in the United States.           8 U.S.C. § 1158(a)(2)(B).         Petitioner

concedes that he did not file a claim for asylum within one year

after his arrival in the United States.        The IJ advised Petitioner

that his application for asylum would not be accepted without a

special motion showing why he failed to apply within one year of

his arrival.       The IJ found that no such motion was filed, and

therefore    dismissed      Petitioner’s     application.         8   U.S.C.

§ 1158(a)(3) provides that “[n]o court shall have jurisdiction to

review any determination of the Attorney General under paragraph

[(a)](2),” which includes the IJ’s determination regarding the

timeliness of Petitioner’s asylum application and the existence of

changed or extraordinary circumstances justifying waiver of the

one-year time limitation.         We lack jurisdiction to review this


                                     -3-
determination and therefore do not consider Petitioner’s claim for

asylum under 8 U.S.C. § 1158.      Sharari v. Gonzales, 407 F.3d 467,

473 (1st Cir. 2005).

                                  III.

           An otherwise removable non-citizen may avoid removal to

a country by showing that it is more likely than not that his “life

or freedom would be threatened in that country because of [his]

race, religion, nationality, membership in a particular social

group, or political opinion.”     8 U.S.C. § 1231(b)(3)(A).          The non-

citizen has the burden of persuasion to “show either that (i) he

has suffered past persecution on account of one of the five

protected grounds (thus creating a rebuttable presumption that he

may suffer future persecution), or (ii) it is more likely than not

that he will be persecuted on account of a protected ground upon

his return to his native land.”          Da Silva, 394 F.3d at 4; see 8

C.F.R. § 208.16(b) (2005).

           Petitioner claims he is the victim of past persecution in

the form of harassment of himself and the murder of two family

members.    Specifically,    he   alleges    that   he   and   his   deceased

relatives were identified as “dukun santets” (a type of mystic or

sorcerer) in their home area of Banyuwangi and marked for death.

Petitioner claims that his grandfather was murdered in Banyuwangi

in January 2000, and that his cousin was also murdered there

shortly after Petitioner arrived in the United States.


                                   -4-
           In support of his application Petitioner submitted as

exhibits three news articles describing a wave of violence against

dukun santets in East Java and particularly Banyuwangi between

February and October of 1998, resulting in the reported deaths of

143 people. According to Petitioner’s oral testimony, in or around

November 1999, Petitioner and his family became aware that people

in   the   area    surrounding     Banyuwangi      suspected    Petitioner’s

grandfather   of    being   a    dukun   santet.      Shortly   thereafter,

Petitioner “managed to flee my grandfather out of town” by taking

him from Banyuwangi to the city of Jember, which is also located in

East Java.    For an unstated reason, Petitioner claimed that “the

effort failed and they still wanted my grandfather.”             Petitioner

claims he returned his grandfather to Banyuwangi.                 Petitioner

claims that after returning to Banyuwangi, he witnessed a mob beat

and kill his grandfather on January 14, 2000.

           Petitioner claims that shortly thereafter he relocated to

another town for an undisclosed period of time, but eventually

returned to Banyuwangi. Upon his return, Petitioner states that he

was attacked and sustained injuries requiring hospitalization.

Petitioner then fled to Jakarta in April 2000. Finally, Petitioner

claimed in oral testimony that his cousin was killed as a suspected

dukun santet approximately one month after Petitioner left for the

United States.

           While a petitioner’s testimony alone may be enough to


                                     -5-
establish a right to withholding under certain circumstances, 8

C.F.R. § 208.16(b), testimony that is vague and inconsistent does

not support a claim for asylum or withholding.                     See Diab v.

Ashcroft, 397 F.3d 35, 40 (1st Cir. 2005).

             The IJ exposed a number of vague or inconsistent points

in Petitioner’s testimony.         First and foremost, Petitioner could

provide no clear reason why he decided to return his grandfather to

Banyuwangi in 2000.      The IJ also noted other discrepancies between

Petitioner’s application and his oral testimony that undermined his

credibility. For example, Petitioner’s application states that his

family lives in Jakarta, but at his hearing, Petitioner insisted

that they live in Banyuwangi.2            Petitioner’s application claims

that his brother was murdered shortly after Petitioner escaped to

the United States, but in his oral testimony he denied having a

brother and claimed that his cousin was murdered instead. Although

minor     inconsistencies    in    an   application     do   not    necessarily

undermine a petitioner’s credibility, see Chebchoub v. INS, 257

F.3d 1038, 1043 (9th Cir. 2001), the composition and location of

the     Petitioner’s     family    is    particularly     important      because

Petitioner’s     claim    for     withholding    hinges      on    the    details

surrounding    the     alleged    mistreatment   of   his    family      members.



      2
      Petitioner’s application for asylum actually lists his parents
as living in “Barhuwamgi,” Indonesia, his written statement claims
that “all my family go to the Jakarta City to looking for
peacefully and safety.”

                                        -6-
Petitioner failed to provide a convincing explanation for these

discrepancies, and we cannot conclude that the record compels a

decision different from that of the IJ.

          The record also demonstrates that Petitioner’s claimed

threat of persecution is confined to only part of Indonesia.   If a

non-resident can relocate without a probability of persecution,

withholding should be denied. 8 C.F.R. § 208.16(b)(3). Petitioner

admits that he worked outside of Banyuwangi as a carpenter from

July of 1999 to July of 2000 without incident.      Petitioner also

admits that he resided in Jakarta without incident from December

2000 to January 2001. The IJ found sufficient evidence to conclude

that Petitioner would not be subject to persecution in Jakarta and

other areas of Indonesia where he has stayed in the past.       The

evidence on the record does not compel otherwise.   Accordingly, we

have no reason to overturn the determination of the IJ adopted by

the BIA and deny Petitioner’s request for withholding under 8

U.S.C. § 1231(b)(3).

                               IV.

          In order to satisfy the requirements of the Convention,

the Petitioner bears the burden of showing that he will be tortured

if returned to Indonesia.   See 8 C.F.R. § 208.16(c)(2).   As with

withholding and asylum, “[t]he testimony of the [petitioner], if

credible, may be sufficient to sustain the burden of proof without

corroboration.”   Id.


                               -7-
           A petitioner must show five elements to qualify for

withholding under the Convention.             Petitioner must show that, more

likely than not, he will be subjected to “(1) an act causing severe

physical or mental pain and suffering; (2) intentionally inflicted;

(3) for a proscribed purpose; (4) by or at the instigation of or

with the consent or acquiescence of a public official who has

custody or physical control of the victim; and (5) not arising from

lawful sanctions.” Settenda v. Ashcroft, 377 F.3d 89, 94 (1st Cir.

2004), quoting Elien v. Ashcroft, 364 F.3d 392, 398 (1st Cir.

2004).

           In addition to the fact that Petitioner has failed to

show a likelihood that he will suffer severe physical or mental

pain and suffering, Petitioner’s claim under the Convention fails

because he was not, nor is he likely to be, harmed through the

actions or acquiescence of a public official.                 According to the

Petitioner, local villagers threatened him and murdered his family

members.      There is no evidence on the record compelling the

conclusion that the state authorized or participated in these

activities.      In    fact,    the     IJ    specifically      found    that   the

Petitioner’s    own    evidence        demonstrated    that     the     Indonesian

government had intervened to stop such attacks in 1998, over a year

prior to the alleged death of Petitioner’s grandfather. Petitioner

did   testify   that   the     local    police    failed   to    issue    a   death

certificate for his grandfather’s murder; however, there is no


                                        -8-
evidence that the Indonesian authorities were aware of any planned

violence against Petitioner’s grandfather prior to the attacks and

failed to perform their lawful duty to prevent such attacks.         We

therefore    uphold   the   BIA’s   adopted   determination   and   deny

Petitioner withholding under the Convention.

                                    V.

            The record does not compel any conclusion different from

the BIA’s adopted findings in this case.        Petitioner’s claim of

past persecution is both vague and inconsistent.      Petitioner’s own

testimony establishes that he does not face a threat of persecution

everywhere in Indonesia. Moreover, any claim for withholding under

the Convention fails because Petitioner has not demonstrated that

the state would promote or acquiesce in the torture of Petitioner

upon his return to Indonesia.

            Thus, the petition for review is DENIED.




                                    -9-
