Tato Nugroho v. Eric H. Holder Jr. , 474 F. App'x 509 ( 2012 )

FILED
NOT FOR PUBLICATION APR 05 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
TATO NUGROHO, No. 08-74895
Petitioner, Agency No. A095-635-777
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 6, 2012 **
Before: B. FLETCHER, REINHARDT, and TASHIMA, Circuit Judges.
Tato Nugroho, a native and citizen of Indonesia, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s decision denying his application for asylum, withholding of
removal, and protection under the Convention Against Torture (“CAT”). We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction under 8 U.S.C. § 1252. We review de novo legal determinations and
for substantial evidence factual findings. Wakkary v. Holder, 558 F.3d 1049, 1056
(9th Cir. 2009). We grant the petition for review, and we remand.
The agency found Nugroho’s asylum application untimely and found he
failed to establish changed or extraordinary circumstances excusing the delay. The
record supports the agency’s finding that Nugroho’s discovery of asylum through
compliance with special registration did not excuse his failure to meet the filing
deadline. See 8 C.F.R. § 1208.4(a)(4), (5). However, the record shows that the
death threats from Jemaah Islamiah after Nugroho left Indonesia for the United
States constitute changed circumstances. See 8 C.F.R. § 1208.4(a)(4); Vahora v.
Holder, 641 F.3d 1038, 1042-47 (9th Cir. 2011) (mistreatment and fear of
persecution before coming to United States did not preclude showing of changed
circumstances based on subsequent incidents, including disappearance of family
members and destruction of petitioner’s home, which materially affected his ability
to show a well-founded fear of persecution). Accordingly, we grant the petition
with respect to Nugroho’s asylum claim and remand for further proceedings
consistent with this disposition. See INS v. Ventura, 537 U.S. 12, 16-18 (2002)
(per curiam).
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With respect to withholding of removal, substantial evidence supports the
agency’s determination that the harm Nugroho experienced during the riots, as a
Muslim shopkeeper, including the loss of his business, was not on account of a
protected ground. See Rostomian v. INS, 210 F.3d 1088, 1089 (9th Cir. 2000)
(petitioner did not establish attack “was anything more than an act of random
violence during a period of significant strife”). However, the record compels the
conclusion that, considered cumulatively, the incidents related to Nugroho’s
perceived apostasy rose to the level of persecution. See Krotova v. Gonzales, 416
F.3d 1080, 1084-87 (9th Cir. 2005) (cumulative effect of economic pressure,
physical violence, and serious restriction on ability to practice religion showed past
persecution); Ahmed v. Keisler, 504 F.3d 1183, 1194 (9th Cir. 2007) (cumulative
effect where petitioner was physically harmed at different times over a period of
years showed past persecution). Further, with respect to future fear, the BIA erred
in discounting Nugroho’s evidence of specific targeting and in referring, without
record support, to general tensions between perceived apostates and more orthodox
Muslim groups. Accordingly, we grant the petition with respect to Nugroho’s
withholding of removal claim, and we remand for further proceedings consistent
with this disposition, including, if appropriate, the application of the presumption
of future persecution. See 8 C.F.R. § 1208.16(b)(1)(i); Ventura, 537 U.S. at 16-18.
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On remand, in light of the conclusions above, the agency should also
reassess Nugroho’s CAT claim.
PETITION FOR REVIEW GRANTED; REMANDED.
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