                                                                           FILED
                             NOT FOR PUBLICATION                            MAY 23 2012

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




                             FOR THE NINTH CIRCUIT



TONY NURDIN,                                     No. 10-70324

               Petitioner,                       Agency No. A099-737-412

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

               Respondent.



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

                             Submitted May 15, 2012 **

Before:        CANBY, GRABER, and M. SMITH, Circuit Judges.

       Tony Nurdin, 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, Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir. 2009), and we review

de novo due process claims, Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir.

2004). We deny the petition for review.

      The agency concluded that Nurdin failed to establish past persecution

because his experiences, including harassment, robberies, and damage to his home

during the 1998 riots, did not rise to the level of persecution. Taking Nurdin’s

testimony as true, the record does not compel a contrary conclusion. See Wakkary,

558 F.3d at 1059-60; Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir. 2003).

Additionally, substantial evidence supports the agency’s conclusion that Nurdin

failed to demonstrate the requisite individualized risk to establish a well-founded

fear of future persecution. See Halim v. Holder, 590 F.3d 971, 979 (9th Cir. 2009);

cf. Sael v. Ashcroft, 386 F.3d 922, 927-29 (9th Cir. 2004). Accordingly, his

asylum claim fails.

      Because Nurdin failed to establish eligibility for asylum, he necessarily fails

to meet the higher standard of eligibility for withholding of removal. See Zehatye

v. Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006).

      In addition, the record does not compel the conclusion that Nurdin faces a

likelihood of torture by, or with the consent or acquiescence of, the Indonesian


                                                                               10-70324
government. See Wakkary, 558 F.3d at 1067-68. Accordingly, his CAT claim

fails.

         Finally, given our above conclusions, we reject Nurdin’s due process

contention regarding the exclusion of his brother’s testimony, which relates only to

the agency’s alternative credibility finding. See Lata v. INS, 204 F.3d 1241, 1246

(9th Cir. 2006) (requiring prejudice to prevail on due process claim).

         PETITION FOR REVIEW DENIED.




                                                                                10-70324
