                Not For Publication in West's Federal Reporter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. 04-1945

                         HARJIADI HENDRA JAYA,

                                Petitioner,

                                      v.

              ALBERTO GONZALES, ATTORNEY GENERAL,*

                                Respondent.


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


                                   Before

                       Boudin, Chief Judge,
                Selya and Howard, Circuit Judges.


     William A. Hahn and Hahn & Matkov on brief for petitioner.
     Peter D. Keisler, Assistant Attorney General, Jeffrey J.
Bernstein, Senior Litigation Counsel, and Carolyn M. Piccotti,
Trial Attorney, on brief for respondent.


                           September 8, 2005

____________________

*Alberto Gonzales was sworn in as United States Attorney General on
February 3, 2005.    We have substituted him for John Ashcroft,
previous holder of that office, as the respondent. See Fed. R.
App. P. 43(c)92).
           Per Curiam. Harjiadi Hendra Jaya, a citizen of Indonesia

of Chinese ethnicity, seeks judicial review of a decision of an

Immigration Judge ("IJ"), adopted by the Board of Immigration

Appeals ("BIA"), which dismissed his asylum application as untimely

and denied his application for withholding of removal on the

merits.   For the reasons discussed below, we deny the petition.

A.   Dismissal of Asylum Application

           An alien who has applied for asylum must "demonstrate[]

by clear and convincing evidence that the application has been

filed within 1 year after the date of the alien's arrival in the

United States."1   8 U.S.C. § 1158(a)(2)(B).        Otherwise, the alien

must "demonstrate[] to the satisfaction of the Attorney General

either [1] the existence of changed circumstances which materially

affect the applicant's eligibility for asylum or [2] extraordinary

circumstances relating to the delay in filing an application." Id.

§ 1158(a)(2)(D).

           Here,   it   is   undisputed   that   Jaya   filed   his   asylum

application more than one year after his arrival in the United

States.   And the IJ and the BIA both found that Jaya's proffered

reasons for delay did not fall into either of these two exceptions.

This court is powerless to review that determination, Sharari v.

Gonzales, 407 F.3d 467, 473 (1st Cir. 2005) (quoting 8 U.S.C. §



      1
      No such time limit applies to applications for withholding of
removal or relief under the Convention Against Torture.

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1158(a)(3) and collecting cases).

B.   Denial of Withholding of Removal

            Under the Immigration and Nationality Act, an otherwise

deportable alien may avoid removal by showing that the alien's life

or freedom would, more likely than not, be threatened in the

destination    country   because   of    the   alien's   race,   religion,

nationality, membership in a particular social group, or political

opinion.2   8 U.S.C. § 1231(b)(3)(A); INS v. Stevic, 467 U.S. 407,

429-30 (1984).    An alien can make this showing in one of two ways.

If the alien demonstrates past persecution on one of the protected

grounds, a rebuttable presumption arises that the alien's life or

freedom would be threatened in the future on that basis, and the

burden shifts to the INS3 to prove by a preponderance of the

evidence that the alien's life or freedom would not be threatened

in the future, either because of improved country conditions or

because the alien could reasonably avoid the threat by relocating

to another part of the country.    8 C.F.R. § 208.16(b)(1); see Silva

v. Ashcroft, 394 F.3d 1, 4 (1st Cir. 2005).         If the alien cannot


      2
      This is a more stringent standard than that applicable to
asylum claims. INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987).
      3
      In March 2003, the relevant functions of the INS were
transferred into the Department of Homeland Security and
reorganized as the Bureau of Immigration and Customs Enforcement
("BICE"). 6 U.S.C. § 291(a), as amended by the Homeland Security
Act, Pub. L. 107-296, § 471, 116 Stat. 2135, 2005.       See United
States v. Watson, 386 F.3d 304, 306 n.1 (1st Cir. 2004).        Any
references to INS after the effective date of the Homeland Security
Act should be understood as references to BICE.

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show past persecution, then the burden remains on the alien to show

that it is more likely than not that the alien's life or freedom

would be threatened in the future.             8 C.F.R. § 208.16(b)(2); see

Silva, 394 F.3d at 4.

            Where, as here, the BIA adopts the reasoning of the IJ,

we review the decision of the IJ.            Albathani v. INS, 318 F.3d 365,

373 (1st Cir. 2003).        We review the IJ's factual findings under the

deferential      substantial     evidence     test,    under     which   the   IJ's

determination must stand "unless any reasonable adjudicator would

be     compelled     to    conclude    to    the      contrary."         8    U.S.C.

§ 1252(b)(4)(B); see Settenda v. Ashcroft, 377 F.3d 89, 93 (1st

Cir. 2004).        In applying the substantial evidence standard, we

review the IJ’s decision based on the entire record, not merely the

evidence that supports the IJ’s conclusions.                  Gailius v. INS, 147

F.3d 34, 44 (1st Cir. 1998).          We review the IJ's legal conclusions

de novo, affording some deference to her interpretation of the

applicable statutes.          INS v. Aguirre-Aguirre, 526 U.S. 415, 425

(1999).

            Here, the IJ did not clearly decide whether Jaya had been

persecuted in the past on account of a protected ground: his

Chinese ethnicity. Although the IJ stated that it "does not appear

that    [Jaya]     w[as]   particularly     targeted     on    account   of    race"

(emphasis added),          she went on to say that "even if I find that

[he] was targeted because of his ethnicity and/or race . . ., [he]


                                       -4-
still has not been able to meet the burden [of showing] . . . that

it is more likely than not that his life or freedom would be

threatened on account of that ground or grounds."                 Similarly,

without considering past persecution, the BIA "agree[d] that [Jaya]

failed to meet his burden of establishing that it is more likely

than not that he will be persecuted . . . upon his return to

Indonesia."

           To the extent that the IJ and BIA continued to place the

burden on Jaya, without first determining whether or not he had

proven past persecution on account of a protected factor, they

erred.   Cf.   Hernandez-Barrera v. Ashcroft, 373 F.3d 9, 22 (1st

Cir.   2004)   (identifying   such    error   in   the   asylum    context).

However, any such error was harmless because, even assuming that

past persecution was established and the presumption of future

threats to Jaya's life or freedom was therefore triggered, any such

presumption was overcome by evidence of changed circumstances. See

Yatskin v. INS, 255 F.3d 5, 9 (1st Cir. 2005).

           In concluding that Jaya's life and liberty would not

likely be threatened if he returned to Indonesia, the IJ found that

Jaya continued to live in Indonesia with his parents for two more

years after the May 1998 riots, on which his claim of past

persecution is primarily based, and that his parents have continued

to live there without incident.            Those facts are supported by

substantial evidence in the record.           The 2002 State Department


                                     -5-
Report of Human Rights Practices contained in the administrative

record further supports the IJ's conclusion of no future threat to

Jaya's life or liberty on account of his Chinese ethnicity.          That

report makes no mention of recent violence against ethnic Chinese,

much less establishes a pattern or practice of such persecution, as

Jaya argues.      Although the report describes discrimination against

people of Chinese descent, discrimination, standing alone, does not

constitute persecution. Sharari, 407 F.3d at 475. Thus, even with

the presumption of future persecution, the evidence in the record

plainly demonstrates, by a preponderance of the evidence, that

conditions in Indonesia have so changed since 1998 that Jaya's life

or liberty would not likely be threatened on account of his Chinese

ethnicity    if    he   were   forced     to   return.4   See   8   C.F.R.

§ 208.16(b)(1).

            Accordingly, we deny the petition. However, in so doing,

we remind the IJ and BIA of their responsibility to make precise

justifications for their decisions under the applicable legal

standards.     See Yatskin, 225 F.3d at 10.

            The petition for judicial review is denied.




     4
      Jaya has asked us to take judicial notice that the 1998 riots
targeted the ethnic Chinese. However, that purported fact concerns
only past persecution, which we are assuming here. Therefore, we
need not decide whether that is a fact or whether the purported
fact is judicially noticeable.


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