Lukarsano v. Holder

FILED
NOT FOR PUBLICATION JUL 09 2010

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

LUKARSONO, No. 08-70317

Petitioner, Agency No. A095-634-688

v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted June 29, 2010 **

Before: ALARCÓN, LEAVY, and GRABER, Circuit Judges.

Lukarsono, 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 for substantial evidence factual

findings, Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir. 2009), and we grant in

part and deny in part the petition for review.

In his opening brief, Lukarsono fails to challenge the agency’s dispositive

determination that his asylum claim was time-barred, and also does not raise any

substantive challenge to the agency’s denial of his CAT claim. See

Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996) (issues not

specifically raised and argued are deemed waived).

Substantial evidence supports the agency’s denial of past persecution

because Lukarsono failed to show he was harmed by forces the government was

unable or unwilling to control. See Castro-Perez v. Gonzales, 409 F.3d 1069, 1072

(9th Cir. 2005).

Lukarsono argued to the BIA that he feared future persecution on account of

his Chinese ethnicity and Christian religion. The agency did not consider

Lukarsono’s application for withholding of removal under the disfavored group

analysis. In light of our recent decisions in Wakkary and Tampubolon v. Holder,

No. 06-70811, 2010 WL 2541610 at *5 (9th Cir. June 25, 2010), we remand for

the BIA to assess Lukarsono’s withholding of removal claim under the disfavored

2 08-70317
group analysis in the first instance. See Wakkary, 558 F.3d at 1067; see also INS v.

Ventura, 537 U.S. 12, 16-18 (2002) (per curiam).

PETITION FOR REVIEW GRANTED in part; DENIED in part;

REMANDED.

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