Buntaran v. Holder , 383 F. App'x 657 ( 2010 )

FILED
NOT FOR PUBLICATION JUN 11 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ANDREAS BUNTARAN, No. 07-74659
Petitioner, Agency No. A096-357-126
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 25, 2010 **
Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.
Andreas Buntaran, a native and citizen of Indonesia, petitions for review of
the Board of Immigration Appeals’ (“BIA”) order summarily affirming an
immigration judge’s (“IJ”) decision denying his application for asylum,
withholding of removal, and relief under the Convention Against Torture (“CAT”).
*
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).
We have jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law
and review for substantial evidence factual findings. Husyev v. Mukasey, 528 F.3d
1172, 1177 (9th Cir. 2008). We deny in part and grant in part the petition for
review.
The record does not compel the conclusion that changed circumstances
excused the untimely filing of Buntaran’s asylum application. See 8 C.F.R. §
1208.4(a)(4), (5). Therefore, we deny the petition as to Buntaran’s asylum claim.
Although substantial evidence does not support the IJ’s finding that
Buntaran’s encounter with the navy official was not on account of his Chinese
ethnicity, see Mihalev v. Ashcroft, 388 F.3d 722, 727-28 (9th Cir. 2004),
substantial evidence supports the IJ’s determination that Buntaran failed to
establish he suffered any harm that, even considered cumulatively, rose to the level
of persecution, see Wakkary v. Holder, 558 F.3d 1049, 1059-60 (9th Cir. 2009);
see also Prasad v. INS, 47 F.3d 336, 339-40 (9th Cir. 1995).
The BIA did not address Buntaran’s contention that he has a clear
probability of persecution as a member of a disfavored group. In light of our
decision in Wakkary, we grant and remand for the BIA to assess Buntaran’s
withholding of removal claim under the disfavored group analysis in the first
instance. See INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam).
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Lastly, Buntaran does not challenge the denial of CAT relief in his opening
brief. See Castro-Perez v. Gonzales, 409 F.3d 1069, 1072 (9th Cir. 2005) (issues
not specifically and distinctly argued in the opening brief are waived).
Each party shall bear its own costs for this petition for review.
PETITION FOR REVIEW DENIED in part; GRANTED in part;
REMANDED.
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