                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                      F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                         February 13, 2006

                                                                  Charles R. Fulbruge III
                                 No. 04-60248                             Clerk


                  HADI NUGROHO; HELMA YUSUF HIDAYAT,
                     also known as Helma Nugroho,
                                                                 Petitioners,

                                    versus

             ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
                                                                  Respondent.


                Petition for Review of an Order of the
                     Board of Immigration Appeals
               BIA No. A75 232 831; BIA No. A76 824 706


Before JONES, Chief Judge, and KING and DENNIS, Circuit Judges.

PER CURIAM:*

            Hadi Nugroho and his wife Helma petition for review of an

order from the Board of Immigration Appeals (“BIA”) affirming the

decision of the Immigration Judge (“IJ”) to deny their application

for asylum, withholding of removal, and protection under the

Convention Against Torture (“CAT”). The IJ determined that (1) the

Nugrohos’ claims for asylum were time barred; (2) the harm suffered

by   Hadi   Nugroho   in   the   past   did   not   rise   to   the   level    of

persecution; and (3) the Nugrohos had not established a reasonable

fear of future harm.




      *
             Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
           First, this court does not have jurisdiction to review

the Nugrohos’ asylum claims, because the BIA found those claims

time barred.    See 8 U.S.C. § 1158(a)(3) (“No court shall have

jurisdiction to review any determination of the Attorney General

under paragraph (2) [providing for exceptions, including the time

bar, to an alien’s right to apply for asylum].”); see also Zhu v.

Ashcroft, 382 F.3d 521, 527 (5th Cir. 2005) (remanding to the BIA

because its affirmance without opinion left the court with “no way

of knowing whether the BIA affirmed the IJ's decision on a non-

reviewable basis, i.e., untimeliness, or a reviewable basis, i.e.,

the merits of [the] asylum claim”).         In the instant case, the BIA

explicitly stated in its opinion that it “agree[d] that the asylum

application is time-barred” and that no circumstances existed to

excuse the delay in filing.     Accordingly, this court cannot hear

the petitioner’s asylum claims.

           The BIA’s decision denying petitioners withholding of

removal and relief under CAT, however, is reviewable by this court.

8 U.S.C. § 1252; Roy v. Ashcroft, 389 F.3d 132, 135 (5th Cir.

2004).   The Attorney General must withhold removal of an alien who

proves a clear probability of persecution upon removal to his home

country.   See 8 U.S.C. § 1231(b)(3)(A).         However, “[t]he BIA will

be reversed only when the evidence is ‘so compelling that no

reasonable   fact   finder   could       fail   to   find’   the   petitioner

statutorily eligible for relief.”          Roy, 389 F.3d at 138 (quoting



                                     2
INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S. Ct. 812

(1992)).

           The Attorney General first contends that the petitioners

have waived their claims for withholding of removal and relief

under CAT by failing to brief them.                  See, e.g., FED. R. APP. P.

28(a)(9)(A);     Salazar-Regino       v.       Trominski,       415    F.3d    436,   452

(5th Cir. 2005).        The petitioners do spend most of their brief

arguing that they should be granted asylum, with scant reference

made to the more demanding withholding of removal standard.                            On

numerous occasions, this court has deemed claims for withholding of

removal and relief under CAT to be waived.                  See       Liu v. Gonzales,

No.   04-60273   (5th    Cir.    Oct.      7,    2005);    Mustafa       v.   Gonzales,

No. 04-60389     (5th   Cir.    May     25,      2005);   Merchant       v.   Gonzales,

No. 04-60414 (5th Cir. Apr. 1, 2005); Muana v. Ashcroft, No. 04-

60222 (5th Cir. Dec. 14, 2005).

           We    need   not     decide         whether    the    Nugrohos’      passing

references to withholding of removal and relief under CAT are

sufficient to raise them on appeal, however, because it is clear

that the IJ and BIA’s rulings rejecting those claims are supported

by substantial evidence.

           The Nugrohos allegedly fear persecution in Indonesia

because Mr. Nugroho is ethnic Chinese.                    The IJ, however, found

Mr. Nugroho’s     testimony      regarding        past    persecution         internally

inconsistent and different from his written application for asylum,

and the BIA affirmed this negative credibility determination.

                                           3
Courts give “great deference to an immigration judge’s decisions

concerning an alien’s credibility.” Efe v. Ashcroft, 293 F.3d 899,

903 (5th Cir. 2002) (citing Chun v. INS, 40 F.3d 76, 78 (5th Cir.

1994)).   Similarly, courts do not substitute judgment “for that of

the BIA or IJ with respect to the credibility of the witnesses or

ultimate factual findings based on credibility determinations.”

Chun, 40 F.3d at 78.      Having reviewed the record, we find no basis

to disagree with the IJ’s and BIA’s finding of no past persecution.

See, e.g., Eduard, 379 F.3d at 187-88 & n.4; Mikhael v. INS, 115

F.3d 299, 304 & n.4 (5th Cir. 1997).

            The Nugrohos can only succeed on their withholding of

removal claim if they prove that there is a clear probability, that

is, it is “more likely than not,” that they would be persecuted on

account of Mr. Nugroho’s ethnicity if they return to Indonesia.

See Roy,389 F.3d at 138.        The IJ determined that the Nugrohos had

not met that burden, and that conditions for ethnic Chinese in

Indonesia were improving.        The IJ further noted that no members of

Mr. Nugroho’s family, all ethnic Chinese, had been persecuted.

See Eduard, 379 F.3d at 193 & n.12 (noting that the safety of

family members is one factor courts can consider in an asylum

claim). Unlike in Eduard, the IJ did not commit an error of law by

finding the persecution against ethnic Chinese Christians1 as

merely symptomatic of a high level of violence in Indonesia,


      1
            The Nugrohos do not claim to be Christian or suffer persecution based
on their religion.

                                       4
see id. at 189-91, or by requiring the petitioners to show that

they would be singled out among their ethnic group, see id. at 192.

Instead, the IJ pointed to evidence from several sources that

following anti-Chinese violence in Indonesia in 1998, the newly

installed government had undertaken to reduce ethnic tensions.

Discrimination against ethnic Chinese, while unfortunate, is not

persecution, as the IJ’s decision also suggests. The Nugrohos have

not shown that the evidence is so compelling that no reasonable

fact finder could fail to find them eligible for withholding.

            Finally, to the extent that the Nugrohos make a CAT

claim, the IJ’s decision finding them ineligible for relief is

supported   by   substantial   evidence,   as   the   Nugrohos   have   not

proffered any evidence establishing a likelihood that they will be

tortured if returned to Indonesia.     See Roy, 389 F.3d at 139-40.

            For the reasons set forth above, we DENY the petition for

review.

            DENIED.




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