Not for Publication in West's Federal Reporter

United States Court of Appeals

For the First Circuit

No. 07-2421

HERU KURNIAWAN, ET AL.,

Petitioners,

v.

MICHAEL B. MUKASEY, ATTORNEY GENERAL,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF

THE BOARD OF IMMIGRATION APPEALS

Before

Lynch, Chief Judge,

Lipez and Howard, Circuit Judges.

Yan Wang on brief for petitioners. 

Anthony Wray Norwood, Senior Litigation Counsel, Jeffrey S.

Bucholtz, Acting Assistant Attorney General, and Terri J. Scadron,

Assistant Director, Office of Immigration Litigation, U.S.

Department of Justice, on brief for respondent.

August 28, 2008
 His given name is Rifai Andreas Tumangka; however, he has 1

adopted the name Heru Kurniawan in the United States. Kurniawan's

wife, Patty Diane Deetje, and their adult sons, Defri Steven and

Welson Agustinus, filed derivative applications for relief from

deportation based on Kurniawan's application. Their claims rest on

Kurniawan's and we therefore do not independently address them. 

 Petitioner also seeks review of the BIA's denial of his 2

petition for relief under the United Nations Convention Against

Torture. However, he waived this claim by failing to meaningfully

raise it before the BIA. Molina De Massenet v. Gonzales, 485 F.3d

661, 664 (1st Cir. 2007) (explaining that arguments not raised

before the BIA are waived due to a failure to exhaust

administrative remedies).

-2-

Per Curiam. Heru Kurniawan, a native and citizen of 1

Indonesia, petitions for review of a decision by the Board of

Immigration Appeals (BIA) affirming the Immigration Judge's denial

of his application for withholding of removal under 8 U.S.C. §

1231(b)(3). He claims that when he lived in Indonesia, he was 2

subject to harassment by members of his family because he converted

from Islam to Christianity. Kurniawan claims that the harassment

will continue if he returns to Indonesia.

In order to qualify for withholding of removal, "an alien

must show, by a clear probability, that [he] will be persecuted

based on a protected ground if [he] is returned to [his] native

country." Ly v. Mukasey, 524 F.3d 126, 132 (1st Cir. 2008). The

applicant must also show that the persecution is "the direct result

of government action, government-supported action, or government's

unwillingness or inability to control private conduct." Id.

(quoting Kho v. Keisler, 505 F.3d 50, 55 (1st Cir. 2007)). A
 The IJ rejected the petitioner's application for asylum 3

because the application was filed after the one-year filing

deadline. The IJ found that the petitioner did not raise any

extraordinary or changed circumstances that would justify ignoring

the requirement that aliens file an asylum application within one

year of arriving in the United States. Jorgji v. Mukasey, 514 F.3d

53, 55 (1st Cir. 2008). The petitioner does not challenge that

determination on appeal. In any event, we would not have the

jurisdiction to entertain such a challenge. Ly, 524 F.3d at 130.

-3-

showing of past persecution gives rise to a rebuttable presumption

of future persecution. 8 C.F.R. § 1208.16(b)(1)(i); Ruiz v.

Mukasey, 526 F.3d 31, 35 (1st Cir. 2008).

Before the Immigration Judge (IJ), the petitioner

testified that he converted from Islam to Christianity in 1984.

Since that conversion, he and his wife have received threats from

his parents and his father's family. These family members

threatened to take his children away from him and his wife if he

did not revert to Islam and raise his sons as Muslims. Although

the IJ acknowledged that "harassment from one's family is ugly,

discriminatory, and regrettable," the IJ concluded that he could

not "find the harassment of the quality and degree experienced by

the petitioners" supported a finding of persecution. This finding

deprived the petitioner of a rebuttable presumption of future

persecution. Ruiz, 526 F.3d at 35.

As the IJ properly noted, "[a]n applicant who has not

suffered past persecution may demonstrate that his life or freedom

would be threatened in a country on account of a protected ground"

and thereby qualify for withholding of removal. See 8 C.F.R. § 3
 We review both the IJ's and BIA's decisions when the BIA 4

adopts and affirms the IJ's decision and adds its own analysis.

Ly, 524 F.3d at 130.

-4-

1208.16(b)(2). However, the IJ explained that the petitioner had

failed to make such a showing. The petitioner provided no evidence

of anyone outside of his family engaging in harassing or

threatening behavior. The IJ further found that "there is no

evidence that the government of Indonesia tolerates the

discrimination [against Christians] in that country such as to be

found as government directed or condoned so as to be tantamount to

persecution." In support of this conclusion, the IJ cited the

2005 Country Report on Human Rights Practices in Indonesia, which

refers to occasional incidences of violence against Christians, but

does not indicate that the government either condones the

religiously motivated violence or is unable to control it.

The BIA affirmed the IJ's decision, adopting its factual

findings. In seeking review, the petitioner challenges only the 4

IJ's and BIA's conclusion that he fails to meet his burden of

proving that it is more likely than not that he would be persecuted

if he returns to Indonesia. He argues that the persecution he

suffered in Indonesia, in conjunction with the 2005 Country Report

on Human Rights Practices in Indonesia, constitutes evidence

sufficient to satisfy his burden. However, nothing in the record

or in his woefully inadequate brief compels a contrary finding.

Jamal v. Mukasey, 531 F.3d 60, 66 (1st Cir. 2008) (explaining that
-5-

a petitioner "must demonstrate the evidence in the record not only

supports a contrary conclusion but compels it").

Therefore, we deny the petition for review. 

So ordered.