NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 11-3520

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MELANIA ISDIATI,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

__________________________________

On Petition for Review of an Order

of the Board of Immigration Appeals

(Agency No. A099-940-363)

Immigration Judge: Rosalind K. Malloy

__________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

April 4, 2012

Before: SCIRICA, CHAGARES and GREENBERG, Circuit Judges

(Filed: April 10, 2012)

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OPINION OF THE COURT

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PER CURIAM.

Melania Isdiati (“Isdiati”) petitions for review of the Board of Immigration 

Appeals’ final order of removal. For the reasons that follow, we will deny the petition for 

review.
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Isdiati, a native and citizen of Indonesia, entered the United States on March 14, 

2004 on a visitor’s visa, and overstayed. She was served with a Notice to Appear for 

removal proceedings, which charged that she was removable under Immigration and 

Nationality Act (“INA”) § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), for remaining in the 

United States for a time longer than permitted. She filed an application for asylum, INA 

§ 208(a), 8 U.S.C. § 1158(a), withholding of removal, INA § 241(b)(3), 8 U.S.C. § 

1231(b)(3), and protection under the Convention Against Torture, 8 C.F.R. §§ 

1208.16(c), 1208.18, claiming persecution by the Indonesian government on the basis of 

her Catholic religion.

On April 1, 2010, Isdiati appeared with counsel for her merits hearing before the 

Immigration Judge. She conceded that she was removable as charged, and that her 

asylum application was not filed within one year of her arrival in the United States. 

Isdiati testified that she was born in Tulungagung on the island of East Java. Her parents 

are dead and a sister recently died from an infection, but her remaining sister, Martina, 

still lives in Tulungagung. Isdiati was baptized in Indonesia and practiced Catholicism 

there. She testified that every Christmas her church would receive bomb threats from 

Islamic extremists. Because of these threats she did not attend holiday services. The 

bomb threats made her feel unsafe attending church, particularly because many of the 

bombings occurred near her home. In 2002, a bomb exploded at a church in Mojokerto, 

near Surabaya. Once in Philadelphia, Isdiati joined St. Thomas Aquinas Church, which 

she attends every Sunday. Isdiati admitted that she was never personally harmed or 
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injured in Indonesia, and her sister Martina currently practices Catholicism in Indonesia 

and has never been harmed.

In her affidavit in support of her asylum application, Isdiati noted the bombing of 

churches in Jakarta, Poso and Pasuran, and the bombings in public places such as the 

airport and a hotel in Bali. Also in support of her application, Isdiati submitted 

background evidence in the form of the 2008 and 2009 Country Reports on Human

Rights Practices for Indonesia, and the 2009 International Religious Freedom Report on 

Indonesia.

Following the hearing, the IJ found that Isdiati’s asylum application was untimely, 

and that she failed to satisfy the changed country conditions or extraordinary 

circumstances tests to excuse her late application. The IJ also determined that Isdiati

failed to make an individualized showing of persecution due to her religion. The IJ found 

Isdiati credible regarding her Catholicism, but the IJ also found that Isdiati had never 

been harmed in Indonesia, and that her sister Martina has never been harmed. 

Furthermore, there was nothing in the record to indicate that the government of Indonesia 

turns a “blind eye” to the damage done to Christian churches. The IJ noted that the 

government has provided additional security for the churches, and Catholicism is 

recognized as one of the major religions in the country. In sum, the IJ concluded that 

there was no objective basis for Isdiati’s fear, and nothing in the record to indicate that 

she would be persecuted in the future on account of her religion; thus, she failed to 

establish that withholding of removal was warranted. In addition, the IJ concluded that 
4

there was no evidence to support a CAT claim. The IJ ordered Isdiati removed to 

Indonesia.

Isdiati appealed to the Board of Immigration Appeals. On August 29, 2011, the 

Board affirmed the IJ and dismissed the appeal. The Board upheld the IJ’s determination 

that Isdiati was ineligible for asylum due to her untimely application and her failure to 

show that any exceptions to the timeliness requirement applied to her, see 8 U.S.C. § 

1158(a)(2)(B), (D). In addition, the Board agreed with the IJ that Isdiati did not 

demonstrate eligibility for withholding of removal. In denying her appeal, the Board 

reasoned that Isdiati had never been injured or harmed, and that her sister, who remains 

in Indonesia and is a practicing Catholic, has never been harmed. The Board also agreed 

with the IJ’s determination that Isdiati’s CAT claim lacked evidentiary support.

Isdiati now seeks review of the Board’s decision, through new counsel. We have 

jurisdiction to review final orders of removal pursuant to 8 U.S.C. § 1252(a)(1), (b)(1).1

 1 Absent a legal or constitutional argument, the determination that Isdiati delayed too 

long in applying for asylum, and that she did not show that any of the exceptions to 

timeliness applied, is unreviewable. 8 U.S.C. § 1158(a)(3); Tarrawally v. Ashcroft, 338 

F.3d 180, 185 (3d Cir. 2003); Jarbough v. Att’y Gen of the U.S., 483 F.3d 184, 189 (3d 

Cir. 2007). In any event, Isdiati does not challenge the agency’s determination that she is 

ineligible to be considered for asylum because her application was filed late. She has 

therefore waived judicial review of this issue. See Kost v. Kozakiewicz, 1 F.3d 176, 182 

(3d Cir. 1993) (absent extraordinary circumstances, failure to develop arguments in 

opening briefs results in waiver of those arguments).

Isdiati has argued in her brief on appeal that a remand is in order because the agency 

overlooked her “pattern or practice” argument, see generally, Lie v. Ashcroft, 396 F.3d 

530, 537 (3d Cir. 2005), that similar situated Christians are persecuted in Indonesia by 

forces the government is unwilling or unable to control, see Sukwanputra v. Gonzales, 
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434 F.3d 627, 637 (3d Cir. 2006) (remanding where the IJ found that petitioner had not 

established a well-founder fear of future persecution without specifically addressing 

whether pattern or practice of persecution existed in Indonesia). Isdiati also disagrees 

with the agency’s determination that she did not demonstrate a clear probability of 

persecution on the basis of an individualized fear of harm, emphasizing in particular the 

imminent and menacing nature of the bomb threats.

The Attorney General in his brief counters, in pertinent part, that Isdiati did not 

raise her pattern or practice claim to the Board and thus she failed to exhaust her 

administrative remedies. She made no such argument before the IJ, never once uttering 

the phrase “pattern or practice, ” and she did not raise the issue in her Notice of Appeal to 

the Board. In her brief before the Board, which consisted of five pages, her issue 

statement was “[w]hether or not the Respondent has suffered past persecution and has a 

well-founded fear of persecution?” A.R. 10. In her Argument section, she neither 

identified record evidence, nor presented any legal authority about a pattern or practice of 

persecution in Indonesia.

We will deny the petition for review. Under INA § 241(b)(3)(A), 8 U.S.C. § 

1231(b)(3)(A), “the Attorney General may not remove an alien to a country if the 

Attorney General decides that the alien’s life or freedom would be threatened in that 

country because of the alien’s race, religion, nationality, membership in a particular 

social group or political opinion.” Id. The alien must establish by a “clear probability” 

that her life or freedom would be threatened in the proposed country. Immigration & 

Naturalization Serv. v. Stevic, 467 U.S. 407, 429 (1984). Clear probability is defined to 
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mean that it is more likely than not that an alien would be subject to persecution. See id.

at 429-30. It is the applicant’s burden to prove her case. 8 C.F.R. § 1208.16(b)(1). To 

establish a well-founded fear of persecution, an applicant must first demonstrate a 

subjective fear of persecution through credible testimony that her fear is genuine. Zubeda 

v. Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003). The alien must show, objectively, that “a 

reasonable person in the alien’s circumstances would fear persecution if returned to the 

country in question.” Id. To satisfy the objective prong, she must show that she would 

be individually singled out for persecution. See Sukwanputra, 434 F.3d at 637.

The Board held that Isdiati did not meet her burden of proof to show that it is more 

likely than not that she would be subject to persecution in Indonesia. To overturn the 

Board’s decision, Isdiati must show us that her evidence was “so compelling that no 

reasonable factfinder could fail to find” in her favor. Immigration & Naturalization Serv. 

v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992). The Board determined that Isdiati did 

not demonstrate a clear probability of persecution on the basis of an individualized fear of 

harm, because she was never injured or harmed by the bomb threats, and her sister 

continues to practice Catholicism in Indonesia without being harmed. The record does 

not compel a contrary conclusion.

If an applicant cannot show that she would be singled out for persecution, she may 

still satisfy the objective prong and thereby qualify for withholding of removal if she 

“establishes that in that country there is a pattern or practice of persecution of a group of 

persons similarly situated to the applicant on account of race, religion, nationality, 

membership in a particular social group, or political opinion.” 8 C.F.R. § 
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1208.16(b)(2)(i). In Lie, 396 F.3d 530, we held that, “to constitute a pattern or practice, 

the persecution of the group must be “systemic, pervasive, or organized.” Id. at 537 

(internal quotation marks removed). Isdiati argues that her evidence in the proceedings 

before the agency of frequent, violent assaults on Christian churches in Indonesia by 

Islamic extremists establishes a pattern or practice of persecution of Christians in 

Indonesia that the police have been unable to control. She argues that the 2009 Country 

Report confirms her testimony that interference with religion in Indonesia occurs with the 

complicity of local officials, see Tampubolon v. Holder, 610 F.3d 1056, 1062 (9th Cir. 

2010) (because record compels conclusion that Christians in Indonesia are disfavored 

group, we must remand for Board to determine whether combination of disfavored group 

evidence and evidence of individualized risk is sufficient to establish that petitioners will 

be persecuted if removed to Indonesia).

Here, the parties do not dispute that the agency determined that Isdiati did not 

establish a well-founded fear of persecution without specifically addressing whether a 

pattern or practice of persecution existed in Indonesia. After a careful review of the 

record, however, we agree with the Attorney General that Isdiati failed to raise a pattern 

or practice argument before the agency. An alien must exhaust all administrative 

remedies available to her before the Board as a prerequisite to raising a claim before this 

Court. See 8 U.S.C. § 1252(d)(1); Yan Lan Wu v. Ashcroft, 393 F.3d 418, 422 (3d Cir.

2005). An applicant must first raise the issue before the agency. Alleyne v. Immigration 

& Naturalization Serv., 879 F.2d 1177, 1182 (3d Cir. 1989). Failure to present an issue 
8

to the agency constitutes a failure to exhaust, thus depriving us of jurisdiction to consider 

it. See Lin v. Att’y Gen. of U.S., 543 F.3d 114, 119-20 (3d Cir. 2008).

 As noted by the Attorney General, Isdiati’s only mention of the phrase “pattern 

or practice” was in the Summary of Argument section in her brief before the Board. 

“Pattern or practice” was not even mentioned before the IJ, in her Notice of Appeal to the 

Board, or in the Argument section of her brief before the Board, let alone argued. There 

was no reference to specific evidence; and no discussion of pertinent legal authority, for 

instance, our decision in Lie, 396 F.3d 530, or precedent from the Ninth Circuit, see, e.g., 

Tampubolon, 610 F.3d 1056, where the pattern or practice argument has gained some 

traction. In the margin of her brief on appeal to this Court, Isdiati states that, although 

she did not explicitly argue to the Board that the bomb threats were made by forces the 

government was unable or unwilling to control, and even though the IJ made no pattern 

or practice determination, see Petitioner’s Brief, at 15 n.1, the Board was still somehow 

supposed to be on notice of the claim. We disagree. We have held that exhaustion of 

administrative remedies is satisfied so long as the alien makes some effort to place the 

Board on notice of a straightforward issue, see Joseph v. Att’y Gen. of U.S., 465 F.3d 

123, 126 (3d Cir. 2006), and we have commented that our “exhaustion policy” is 

“liberal,” id. But here the Board understandably did not address a pattern or practice 

argument because there was nothing to alert the Board to its existence. 

As in Lin, 543 F.3d at 122, we reject Isdiati’s argument that she raised this issue 

before the agency. Her recitation of the magic words “pattern or practice” in her 

Summary of Argument, with no reference whatever to evidence in support of the claim or 
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any of the many cases which address and discuss “pattern or practice,” was not enough to 

put the Board on notice of the issue. Moreover, unlike in Lin, where we went on to hold 

that the exhaustion requirement was nonetheless satisfied because the Board issued a 

decision considering the merits of the issue sua sponte, see id. at 124, we cannot hold 

here that the pattern or practice issue is exhausted because the agency in Isdiati’s case did 

not address a pattern or practice argument sua sponte and issue a full explanatory 

discussion of the issue. Accordingly, we lack jurisdiction to consider Isdiati’s pattern or 

practice argument, 8 U.S.C. § 1252(d)(1).

Last, the record does not compel a conclusion that it is more likely than not that 

Isdiati would be tortured by or with the consent of the Indonesian government, see

generally 8 C.F.R. § 1208.18(a)(1). 

For the foregoing reasons, we will deny the petition for review.