                                                                            FILED
                             NOT FOR PUBLICATION                             MAR 02 2012

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




                              FOR THE NINTH CIRCUIT



MELWANCHE ARIEF,                                  No. 09-71825

               Petitioner,                        Agency No. A095-634-613

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

               Respondent.



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

                             Submitted February 21, 2012 **

Before:        FERNANDEZ, McKEOWN, and BYBEE, Circuit Judges.

       Melwanche Arief, a native and citizen of Indonesia, petitions for review of

the Board of Immigration Appeals’ order dismissing his appeal from the

immigration judge’s (“IJ”) decision denying his application for asylum,

withholding of removal, and relief under the Convention Against Torture (“CAT”).


          *
             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).
We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence

the agency’s factual findings, Santos-Lemus v. Mukasey, 542 F.3d 738, 742 (9th

Cir. 2008), and we review de novo due process claims, Iturribarria v. INS, 321

F.3d 889, 894 (9th Cir. 2003). We deny the petition for review.

      Arief does not challenge the agency’s dispositive finding that his application

is time-barred. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.

1996) (issues not supported by argument are deemed abandoned). Accordingly,

his asylum claim fails.

      With respect to his withholding of removal claim, substantial evidence

supports the agency’s findings that Arief’s beating by five unknown individuals

does not constitute persecution because the government was not involved, and

petitioner did not establish that police were unwilling or unable to control his

attackers. See Castro-Perez v. Gonzales, 409 F.3d 1069, 1072 (9th Cir. 2005).

Furthermore, substantial evidence supports the agency’s findings that Arief has not

met his burden in establishing that it is more likely than not he will suffer future

persecution if returned to Indonesia. See Nagoulko v. INS, 333 F.3d 1012, 1018

(9th Cir. 2003); Fakhry v. Mukasey, 524 F.3d 1057, 1065-66 (9th Cir. 2008)

(evidence of Senegalese applicant’s severe beating and his membership in an




                                                                                   09-71825
opposition group did not compel a finding that it was more likely than not he

would be persecuted upon return).

      Substantial evidence also supports the agency’s findings that Arief has not

established that he will be tortured by or with the acquiescence of the Indonesian.

government. See Silaya v. Mukasey, 524 F.3d 1066, 1073 (9th Cir. 2008).

Accordingly, his CAT claim fails.

      Finally, we reject Arief’s contention that the IJ should have recused himself

and that the IJ impermissibly referred back to the old hearing. See Lata v. INS, 204

F.3d 1241, 1246 (9th Cir. 2000) (requiring error and prejudice to prevail on due

process claim).

      PETITION FOR REVIEW DENIED.




                                                                                09-71825
