                                                                            FILED
                             NOT FOR PUBLICATION                             MAR 21 2012

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




                             FOR THE NINTH CIRCUIT



INDRA WINATA,                                     No. 09-73563

               Petitioner,                        Agency No. A099-462-820

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

               Respondent.



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

                             Submitted March 6, 2012 **

Before:        B. FLETCHER, REINHARDT, and TASHIMA, Circuit Judges.

       Indra Winata, a native and citizen of Indonesia, petitions for review of the

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

judge’s decision denying his application for asylum, withholding of removal, and

protection under the Convention Against Torture (“CAT”). We have jurisdiction


          *
             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).
under 8 U.S.C. § 1252. We review for substantial evidence the agency’s factual

findings, and we review de novo the agency’s legal determinations. Wakkary v.

Holder, 558 F.3d 1049, 1056 (9th Cir. 2009). We deny the petition for review.

      The record does not compel the conclusion that Winata established changed

or extraordinary circumstances to excuse his untimely asylum application. See

8 C.F.R. § 1208.4(a)(4), (5). Accordingly, his asylum claim fails.

      Substantial evidence supports the agency’s determination that Winata’s

experiences, including the burning down of his business in the 1998 riots, his

wife’s arrest, and the past harassment and trouble experienced by his family, do not

rise to the level of persecution. See Khourassany v. INS, 208 F.3d 1096, 1100-01

(9th Cir. 2000) (harassment, questioning by police, and forced closing of

Palestinian Israeli’s restaurant, when he continued to operate other businesses, did

not constitute persecution); see also Wakkary, 559 F.3d at 1059-60. Substantial

evidence also supports the agency’s finding that, even under a disfavored group

analysis, Winata failed to demonstrate a clear probability of future persecution

because he did not establish sufficient individualized risk and his wife remains in

Indonesia unharmed. See id. at 1066 (“An applicant for withholding of removal

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

to prevail . . . .”); see also Tamang v. Holder, 598 F.3d 1083, 1094 (9th Cir. 2010)


                                       2                                         09-73563
(analyzing withholding of removal claim and concluding that petitioner’s fear of

future persecution, which was based on threats received by his family, was not

objectively reasonable where his family voluntarily returned to Nepal and

continued to live there unharmed). Accordingly, Winata’s withholding of removal

claim fails.

       Finally, substantial evidence supports the agency’s denial of CAT relief

because Winata failed to show it is more likely than not he will be tortured with the

consent or acquiescence of the government if returned to Indonesia. See Wakkary,

558 F.3d at 1067-68.

       PETITION FOR REVIEW DENIED.




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