Not for Publication in West's Federal Reporter

United States Court of Appeals

For the First Circuit

No. 07-2648

RADJAMIN HASUDUNGAN BENITO,

Petitioner,

v.

MICHAEL B. MUKASEY, 

ATTORNEY GENERAL,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER

OF THE BOARD OF IMMIGRATION APPEALS

Before

Boudin, Stahl, and Howard,

Circuit Judges.

Armin A. Skalmowski on brief for petitioner.

Gregory G. Katsas, Acting Assistant Attorney General, and

Terri J. Scadron, Assistant Director, Office of Immigration

Litigation, on brief for respondent.

October 22, 2008
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STAHL, Circuit Judge. The Board of Immigration Appeals

(BIA) affirmed an Immigration Judge's (IJ's) decision finding

Radjamin Hasudungan Benito ineligible for asylum, withholding of

removal, and protection under the Convention Against Torture (CAT).

Benito now petitions this court for a review of the BIA's denial of

his claims. We deny the petition for review.

I. BACKGROUND

In May 2002, Benito, a native and citizen of Indonesia,

entered the United States as a non-immigrant visitor with

authorization to remain in the country until June 18, 2002. In a

Notice to Appear dated April 11, 2003, the Department of Homeland

Security (DHS) began removal proceedings. Conceding removability,

Benito appeared before an IJ on November 29, 2005, and sought

asylum, withholding of removal, and relief under the CAT. 

The IJ found Benito credible, and thus, we relate the

facts of the case as he testified to them.

Benito was born in January 1972 to a Protestant Christian

family. During his childhood and adult life in Indonesia, a

largely Muslim nation, he was an active member of Christian

churches. Benito and his family experienced anti-Christian verbal

threats and abuse by neighbors and acquaintances, and he observed

discrimination against Christians during high school and at the

University of Sumatera Utara.
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After graduating in 1996 with a degree in economic

management, Benito worked for five years at a Korean-owned

manufacturing company. On several occasions, coworkers sent him

emails with graphic images and news stories detailing murders of

Christian citizens. Benito did not report the emails to his Korean

supervisors or the Indonesian police, believing such efforts would

be futile. During this time, many Christian churches were burned

and destroyed. Benito also recalls hearing of additional bombings

and murders of Christians. In August 2001, Benito began working

for a foreign currency exchange, and while there, experienced no

anti-Christian encounters.

Benito entered the United States on a tourist visa for 30

days in May 2002 to attend his brother's graduation from the

Rochester Institute of Technology in New York. Before Benito

departed Indonesia, his brother, who was concerned for Benito's

safety as a Christian in Indonesia, suggested that Benito remain in

the United States. While Benito's brother returned to Indonesia

within weeks of his graduation, Benito remained in the United

States and spent the next three years working odd jobs and

following events in Indonesia. During this time, Benito's parents,

brother, and three sisters continued to live in Indonesia as

Christians. While Benito believed they faced "intimidation," no

family member experienced physical harm. On October 26, 2005,

believing that conditions in Indonesia had worsened, Benito filed
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an application for asylum, withholding of removal, and protection

under the CAT.

After a hearing on November 29, 2005, the IJ determined

that Benito was removable as charged. Specifically, the IJ found

that Benito did not establish extraordinary or changed

circumstances to justify his failure to apply for asylum within one

year of his arrival to the United States, failed to show clear

probability of future persecution to warrant withholding of

removal, and provided no evidence that he likely faced torture upon

his return to Indonesia, thus failing to satisfy the CAT's

requirements. On appeal, the BIA affirmed the IJ's decision and

rejected as evidence of changed circumstances warranting a remand

two news articles Benito attached to his appellate brief.

II. ANALYSIS

A. Standard of Review

This court reviews the BIA's decision for substantial

evidence and accepts the BIA's findings of fact if they are

"supported by reasonable, substantial, and probative evidence on

the record considered as a whole." Njenga v. Ashcroft, 386 F.3d

335, 338 (1st Cir. 2004) (quoting INS v. Elias-Zacarias, 502 U.S.

478, 481 (1992)) (internal quotation marks omitted). We will

reverse factual determinations contained in the decision below only

if "any reasonable adjudicator would be compelled to conclude to

the contrary." 8 U.S.C. § 1252(b)(4)(B). Where, as here, "the BIA
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adopts an IJ's decision, we review the relevant portion of the IJ's

opinion as though it were the decision of the BIA." Guillaume v.

Gonzáles, 504 F.3d 68, 72 (1st Cir. 2007) (citing Stroni v.

Gonzáles, 454 F.3d 82, 86-87 (1st Cir. 2006)).

B. Asylum

An application for asylum must be filed within one year

of the alien's arrival in the United States, absent changed

circumstances affecting eligibility for asylum or extraordinary

circumstances relating to the delay in filing. 8 U.S.C. §§

1158(a)(2)(B), 1158(a)(2)(D). Here, it is undisputed that Benito

resided in the United States more than three years before filing

for asylum. The IJ determined no extraordinary or changed

circumstances existed to justify waiving the time limit.

Therefore, we lack jurisdiction to review this determination. Id.

at § 1158(a)(3); Sharari v. Gonzáles, 407 F.3d 467, 473 (1st Cir.

2005) (explaining we lack jurisdiction to review the BIA's findings

regarding compliance with the one-year time limit as well as

whether there are extraordinary or changed circumstances sufficient

to merit an exception).

C. Withholding of Removal

Benito next appeals the BIA's denial of withholding of

removal. First, he asserts that the IJ committed reversible error

in failing to make a specific finding regarding past persecution.

The Government counters that Benito never presented this argument
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to the BIA, and therefore, this court lacks jurisdiction to review

it.

"When a claim presented to us on appeal has not

previously been presented to the BIA, the petitioner has failed to

exhaust his administrative remedies, eliminating this court's

jurisdiction to review the agency's actions." Berrio-Barrera v.

Gonzáles, 460 F.3d 163, 167 (1st Cir. 2006) (citing Makhoul v.

Ashcroft, 387 F.3d 75, 80 (1st Cir. 2004) and 8 U.S.C. §

1252(d)(1)). In his BIA appeal, Benito argued the IJ erred in

ruling there was no past persecution and no fear of future

persecution. However, Benito did not take issue with the

specificity of the IJ's holding on past persecution. The BIA thus

lacked notice that Benito believed the IJ's failure to make an

explicit finding constituted reversible error. Because Benito did

not exhaust his administrative remedies by raising this argument

below, we lack the jurisdiction to consider it now.

Although we lack the jurisdiction to consider a remand

for more specific reasoning, we can consider whether the BIA

incorrectly denied Benito withholding of removal, an argument

Benito raised below. The "standard for withholding deportation is

more stringent than that for asylum." Albathani v. INS, 318 F.3d

365, 372 (1st Cir. 2003). While an applicant for asylum must show

that a reasonable person in his circumstances would fear

persecution, withholding of removal requires proof of a clear
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probability of persecution. Palma-Mazariegos v. Gonzáles, 428 F.3d

30, 37 (1st Cir. 2005). "To qualify as persecution, a person's

experience must rise above unpleasantness, harassment, and even

basic suffering." Nelson v. INS, 232 F.3d 258, 263 (1st Cir.

2000). See also Topalli v. Gonzáles, 417 F.3d 128, 132 (1st Cir.

2005) (differentiating "systematic maltreatment that rose to the

level of past persecution" from "isolated incidents"); Bocova v.

Gonzáles, 412 F.3d 257, 263 (1st Cir. 2005) ("mistreatment

ordinarily must entail more than sporadic abuse in order to

constitute persecution"). We agree with the BIA that Benito has

not met this high standard.

A withholding applicant who establishes past persecution

enjoys a rebuttable presumption that "[his] life or freedom would

be threatened in the future . . . on the basis of the original

claim." 8 C.F.R. § 1208.16(b)(1)(i). Absent past persecution, the

applicant must prove he faces a clear probability of persecution on

account of a protected ground. Id. at § 1208.16(b)(2). 

While the IJ explicitly stated that Benito had not

demonstrated a clear probability of future persecution, the IJ did

not make specific findings regarding Benito's evidence of past

persecution. We have previously noted this failure can

"unnecessarily complicate[] our review." Yatskin v. INS, 255 F.3d

5, 9 (1st Cir. 2001). However, we also have observed that

"findings regarding past persecution are easily inferable."
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Pulisir v. Mukasey, 524 F.3d 302, 308 (1st Cir. 2008); accord

Wiratama v. Mukasey, 538 F.3d 1, 7 (1st Cir. 2008)(determining that

IJ's findings on future persecution subsumed issue of past

persecution where applicant offered no independent evidence of

probability of future persecution).

Here, the IJ considered whether Benito had shown that it

was more likely than not he would face persecution if he returned

to Indonesia. The IJ reasoned that Benito's evidence of verbal

threats and the graphic emails did not establish a probability of

future persecution, noted that Benito had not suffered physical

harm in Indonesia, and observed that Benito's family continued to

reside in Indonesia without physical injury. See Bonilla v.

Mukasey, 539 F.3d 72, 75-78 (1st Cir. 2008) (affirming denial of

withholding of removal where applicant received repeated and

targeted phone and mail threats and was declared a military target

but his son continued to live in Colombia); Aguilar-Solis v. INS,

168 F.3d 565, 573 (1st Cir. 1999) (stating "the fact that close

relatives continue to live peacefully in [petitioner's] homeland

undercuts the alien's claim that persecution awaits his return").

Although the IJ did not respond expressly to Benito's

claim of past persecution, both the IJ and the BIA acknowledged the

alleged acts of persecution, and we can infer from the denial of

withholding "that those rather bland incidents failed to justify

the relief requested." Pulisir, 524 F.3d at 308. Indeed, like the
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petitioner in Wiratama, Benito provided no independent evidence

regarding a probability of future persecution. See 538 F.3d at 7.

The IJ's attention to the absence of physical harm to Benito and

his family thus reflected his conclusion that Benito had not

suffered past persecution. Cf. Sinurat v. Mukasey, 537 F.3d 59,

61-62 (1st Cir. 2008) (holding that harm suffered by Indonesian

alien from single beating by Muslim students did not amount to past

persecution); Pulisir, 524 F.3d at 308-09 (finding two instances of

rock-throwing by Muslims at petitioner's Christian church and one

altercation at prayer meeting during which petitioner lost a tooth

did not constitute past persecution). We agree with the BIA that

Benito has not demonstrated past persecution or a clear probability

of future persecution such that the IJ would be compelled to

conclude to the contrary.

D. Protection under the CAT

Benito appeals the BIA's determination that he is not

eligible for protection under the CAT. Benito did not make

arguments in either his petition or his brief to the BIA regarding

relief under the CAT. Therefore, we lack the jurisdiction to

consider this argument. 8 U.S.C. § 1252(d)(1).

E. New Country Conditions Evidence

Finally, Benito claims we must reverse the BIA's ruling

because the administrative tribunal refused to remand in light of

new country conditions evidence. This court reviews the BIA's
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decision on a motion to remand for abuse of discretion. Zhang v.

Ashcroft, 348 F.3d 289, 293 (1st Cir. 2003) (citing Nascimento v.

INS, 274 F.3d 26, 28 (1st Cir. 2001)). Abuse of discretion exists

only where the denial was made "without a 'rational explanation,

inexplicably departed from the established policies, or rested on

an impermissible basis.'" Id. (quoting Nascimento, 274 F.3d at

28). 

Benito has not provided compelling evidence to

demonstrate the BIA abused its discretion in denying his remand.

The BIA considered Benito's evidence and concluded that it failed

to demonstrate a substantial likelihood of a different result upon

remand. We agree with the BIA that the two news articles submitted

by Benito do not demonstrate a sufficient change in country

conditions to warrant a remand of his case and conclude the BIA did

not abuse its discretion in finding that Benito failed to present

evidence that likely would change the outcome of his case.

III. CONCLUSION

For the foregoing reasons, we deny Benito's petition for

review.