FILED
NOT FOR PUBLICATION JUL 19 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
EDWIN GILBERT WATUNG, No. 07-72309
Petitioner, Agency No. A096-364-544
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.
Edwin Gilbert Watung, a native and citizen of Indonesia, petitions for
review of the Board of Immigration Appeals’ order dismissing his appeal from an
immigration judge’s decision denying his application for asylum and withholding
of removal, and his application for cancellation of removal. We have jurisdiction
*
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).
under 8 U.S.C. § 1252. We review for substantial evidence the agency’s factual
findings, Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir. 2009), and review de
novo claims of due process violations, Martinez-Rosas v. Gonzales, 424 F.3d 926,
930 (9th Cir. 2005). We deny in part, grant in part, and dismiss in part the petition
for review.
The record does not compel the conclusion that Watung established changed
circumstances to excuse his untimely filed asylum application. See 8 C.F.R.
§ 1208.4(a)(4); Ramadan v. Gonzales, 479 F.3d 646, 656-58 (9th Cir. 2007) (per
curiam). Accordingly, we deny the petition for review as to Watung’s asylum
claim.
Substantial evidence supports the agency’s determination that the incidents
Watung suffered did not rise to the level of persecution. See Prasad v. INS, 47
F.3d 336, 339-40 (9th Cir. 1995). The agency did not consider Watung’s
application for withholding of removal under the disfavored group analysis,
however. 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 Watung’s withholding of removal claim under the disfavored
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).
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We lack jurisdiction to review the agency’s discretionary determination that
Watung failed to show exceptional and extremely unusual hardship to a qualifying
relative. See Martinez-Rosas, 424 F.3d at 930.
Watung’s contention that the agency deprived him of due process by
misapplying the law to the facts of his case does not state a colorable due process
claim. See id. (“[t]raditional abuse of discretion challenges recast as alleged due
process violations do not constitute colorable constitutional claims that would
invoke our jurisdiction.”); see also Sanchez-Cruz v. INS, 255 F.3d 775, 779 (9th
Cir. 2001) (holding that the “misapplication of case law” may not be reviewed).
Watung’s request for attorney’s fees is denied.
PETITION FOR REVIEW DENIED in part; GRANTED in part;
DISMISSED in part; REMANDED.
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