Of the Northern District of California, sitting by *

designation.

Not for Publication in West’s Federal Reporter

United States Court of Appeals

For the First Circuit

No. 07-2361

FNU ODMAR,

Petitioner,

v.

MICHAEL B. MUKASEY, ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD

OF IMMIGRATION APPEALS

Before

Lynch, Chief Judge,

Boudin, Circuit Judge, 

and Schwarzer, Senior District Judge. *

William A. Hahn with whom Hahn & Matkov was on brief for

petitioner.

Gregory K. Katsas, Acting Assistant Attorney General, Civil

Division, Cindy S. Ferrier, Senior Litigation Counsel, and Tracie

N. Jones, Trial Attorney, Office of Immigration Litigation, Civil

Division, on brief for respondent.

October 1, 2008
 Odmar has waived any challenge to the denial of relief under 1

the Convention Against Torture (“CAT”) by not raising it in his

opening brief. See Levin v. Dalva Bros., Inc., 459 F.3d 68, 76 n.4

(1st Cir. 2006).

2

SCHWARZER, District Judge. Fnu Odmar, a native and

citizen of Indonesia, petitions for review of the Board of

Immigration Appeals’ (“BIA”) dismissal of his appeal from the

denial of asylum and withholding of removal by an Immigration Judge

(“IJ”). Odmar contends that the BIA erred in determining (1) that 1

there was no material change in circumstances establishing an

exception to the requirement that asylum applications be filed

within one year of arrival in the United States, and (2) that he

was not entitled to withholding of removal. Because we lack

jurisdiction to review the BIA’s determination regarding the

timeliness of Odmar’s asylum application and substantial evidence

supports the denial of withholding, we dismiss Odmar’s petition for

review in part and deny it in part.

I. BACKGROUND

Odmar entered the United States on April 4, 1999, as a

crew member authorized to remain for no more than twenty-nine days.

On April 14, 2003, Odmar was served with a Notice to Appear

charging him as removable pursuant to Section 237(a)(1)(B) of the

Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(B). Odmar

filed a defensive asylum application on July 28, 2005, based on his
3

Christianity. 

In his testimony before the IJ and in his asylum

application, Odmar described various incidents of harm in support

of his applications for asylum, withholding of removal, and CAT

relief. The IJ found Odmar credible. Odmar described being

fearful after witnessing the 1984 clash between Muslims and

Christians in the Tanjung Priok area of Jakarta. In June 1996, a

Muslim group leader interrupted a home prayer service in which

Odmar participated and demanded that the attendees stop their

prayers. In December 1998, Odmar witnessed a Muslim group attack

a man on a bus identified as Christian on his national

identification card, which indicates religion. Odmar described

that members of Muslim organizations solicited him, but not his

Muslim neighbors, for donations, and that he felt pressured to

contribute. Odmar also testified that his mother and sister

continue to reside in Indonesia and practice Christianity without

problems.

At the conclusion of the March 2, 2006, hearing, the IJ

denied all relief except voluntary departure. The IJ determined

that Odmar did not file an asylum application within one year of

arriving in the United States, and that he did not qualify for an

exception based on materially changed circumstances in Indonesia.

The IJ denied withholding of removal finding that Odmar did not

show that it was more likely than not that he would be persecuted
4

on account of his Christianity if he returned to Indonesia. The IJ

found that Odmar’s experiences did not rise to the requisite level

of past persecution. The IJ also noted that Odmar testified that

his mother, sister, and brother-in-law, who were also Christian,

worshiped without any interference from Muslims or the government.

Odmar timely appealed the IJ’s decision to the BIA. The

BIA issued a decision on August 3, 2007, affirming the denial of

all relief and the grant of voluntary departure. The BIA found

that Odmar was ineligible for asylum based on his failure to file

within the statutory one-year deadline, and his inability to

establish “any changed circumstances in Indonesia affecting his

eligibility or extraordinary circumstances relating to the delay in

filing an application.” The BIA observed that although Odmar

claimed that conditions in Indonesia had been deteriorating since

his 1999 departure, he did not apply for asylum until six years

later in 2005, and he did not identify “any new ‘changes’ that

occurred in his native country within a reasonable time of his

filing that related to his claim for relief, and excused his delay

in filing.” 

The BIA found that Odmar’s experiences were not

sufficiently severe to establish past persecution. The BIA denied

withholding, determining that there was no objective basis in the

record to conclude that it was more likely than not that Odmar

would be persecuted if he returned to Indonesia. The BIA also
5

agreed with the IJ’s determination that Odmar was not entitled to

CAT relief. 

Odmar filed a timely petition for review. 

II. ANALYSIS

A. Timeliness of Odmar’s Asylum Application

We lack jurisdiction to review the denial of Odmar's

asylum application based on the BIA’s determinations that Odmar did

not file his application within the one year deadline and failed to

demonstrate changed or extraordinary circumstances excusing his

late filing. See 8 U.S.C. § 1158(a)(3); Hayek v. Gonzales, 445

F.3d 501, 506-507 (1st Cir. 2006). Under the REAL ID Act, this

court does retain jurisdiction to review constitutional claims or

questions of law raised in a petition for review.

8 U.S.C. § 1252(a)(2)(D). The BIA’s findings regarding timeliness

and changed or extraordinary circumstances, however, are usually

factual determinations outside the court’s jurisdiction. See

Hayek, 445 F.3d at 506-507. 

Odmar contends that we retain jurisdiction because he

raises a question of law. He argues that the IJ used the incorrect

legal standard by concluding that "an increase in the intensity in

the circumstances in a particular country does not constitute a

material change as contemplated by the regulations," and that the

BIA "affirmed and simply cited the statute and regulation." 

This argument is unavailing. Though the BIA affirmed the
6

IJ, the BIA supplied its own reasoning and did not simply adopt the

reasoning of the IJ. Based on the record evidence, the BIA

concluded that Odmar had not identified "any new ‘changes' that

occurred in his native country within a reasonable time of his

filing that related to his claim for relief, and excused his delay

in filing." Contrary to Odmar's argument, this determination did

not involve the application of an erroneous legal standard; rather,

it is a factual determination that Odmar did not demonstrate that

circumstances in Indonesia had changed such that his untimely

application should be excused. Determinations of changed

circumstances are generally factual determinations, Hayek, 445

F.3d at 506-507, and Odmar has not presented a convincing argument

that the agency's determination here was not of a factual nature.

This court therefore lacks jurisdiction to review Odmar's claim

that the BIA erred in finding that his untimely application was not

excused.

B. Withholding of Removal

We review the BIA's findings of fact for substantial

evidence. See Romilus v. Ashcroft, 385 F.3d 1, 5 (1st Cir. 2004).

The BIA's findings are upheld if they are "supported by reasonable,

substantial, and probative evidence on the record considered as a

whole," and are reversed only if "the record evidence would compel

a reasonable factfinder to make a contrary determination." Id.

(internal quotation marks and citations omitted). 
7

To qualify for withholding of removal, Odmar must either

(1) show that he suffered past persecution on account of a

protected ground, creating a rebuttable presumption of future

persecution; or (2) demonstrate a clear probability of persecution,

which requires a showing that it is "more likely than not" that his

life or freedom would be threatened on account of race, religion,

nationality, membership in a particular social group, or political

opinion. See INS v. Cardoza-Fonseca, 480 U.S. 421, 430-31 (1987);

Da Silva v. Ashcroft, 394 F.3d 1, 4 (1st Cir. 2005).

1. Past Persecution

Sufficient evidence supports the BIA's determination that

Odmar’s experiences do not rise to the level of past persecution.

His home prayer service was disrupted, he was solicited for money,

and he witnessed physical confrontations. Odmar never suffered any

physical harm, was never confined, and was never directly

threatened. Occasional mistreatment or a generalized fear of

mistreatment do not, on their own, constitute persecution. See

Sombah v. Mukasey, 529 F.3d 49, 50-52 (1st Cir. 2008) (Christian

Indonesian did not establish past persecution where applicant

hosted monthly prayer meetings and the attendees’ cars were

vandalized, her church was burned down, her husband was threatened

on a bus, and Muslim neighbors killed her dog); Susanto v.

Gonzales, 439 F.3d 57, 59-60 (1st Cir. 2006) (Chinese Christian

Indonesian did not establish past persecution where she was
8

mugged, her home was vandalized during the 1998 riots, her church

was bombed, and a Muslim crowd threatened and threw stones at her).

Odmar's contention that the IJ failed to take into

account the totality of the circumstances and violated due process

by ignoring evidence of country conditions between 2002 and 2005 is

meritless. In his decision, the IJ specifically refers to evidence

of country conditions from this time period, including news

articles, State Department reports, and other reports submitted in

Exhibit 6, and materials postdating September 2005. See Sombah,

529 F.3d at 51-52. The parties also addressed the 2005

International Religious Freedom Report during the hearing before

the IJ. 

2. Future Persecution

Substantial evidence supports the BIA’s finding that

Odmar did not establish that it was more likely than not that his

life or freedom would be threatened on account of his Christianity

based on country conditions and Odmar’s testimony that his family

remains unharmed in Indonesia. See Sipayung v. Gonzales, 491 F.3d

18, 20 (1st Cir. 2007) (no objectively reasonable fear of future

persecution where family remained in Indonesia unharmed and able to

safely practice their religion, and country reports indicated

improved conditions for Christians); Ferdinandus v. Gonzales, 504

F.3d 61, 63 (1st Cir. 2007) (safety of petitioner's children, who

still live and attend church in Indonesia, undercuts her argument
9

that she will suffer future persecution). 

Odmar also argues that direct government involvement

triggers “heightened scrutiny” of his claims. We need not consider

this argument because Odmar failed to present it to the BIA. See

Sombah, 529 F.3d at 52 (rejecting same argument). 

We dismiss the petition for review in part for lack of

jurisdiction and deny it in part.