FILED
NOT FOR PUBLICATION NOV 22 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOSEF CARLO MARGIO RENALDO, No. 07-73950
Petitioner, Agency No. A096-360-088
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 16, 2010 **
Before: TASHIMA, BERZON, and CLIFTON, Circuit Judges.
Josef Carlo Margio Renaldo, a native and citizen of Indonesia, petitions for
review of the Board of Immigration Appeals’ order dismissing his appeal from an
immigration judge’s (“IJ”) decision denying his application for asylum,
withholding of removal, and protection under the Convention Against Torture
*
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).
(“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial
evidence, Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir. 2009). We deny in
part and grant in part the petition for review, and we remand.
The record does not compel the conclusion that changed circumstances
excused the untimely filing of Renaldo’s 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). We are, however, unable fully to review Renaldo’s claim of
extraordinary circumstances because we cannot ascertain from the record whether
the BIA found no extraordinary circumstances based a finding that Renaldo failed
to establish extraordinary circumstances or based on a finding that he failed to file
his asylum application within a reasonable time after the occurrence of an
extraordinary circumstance. See Ghaly v. INS, 58 F.3d 1425, 1430 (9th Cir. 1999)
(noting that the “Board [must] provide a comprehensible reason for its decision
sufficient for us to conduct our review and to be assured that the petitioner’s case
received individualized attention”). We therefore remand Renaldo’s asylum claim
to the BIA to determine whether he established extraordinary circumstances, and,
if so, whether his delay in fling his asylum application was reasonable in light of
the presumption that a six-month delay is reasonable. See Wakkary v. Holder, 558
F.3d 1049, 1057-59 (9th Cir. 2009).
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Substantial evidence supports the BIA’s finding that Renaldo did not suffer
past persecution because the incidents he suffered in Indonesia, including threats,
discrimination, the attack on his house, and minor physical harm, even considered
cumulatively, do not rise to the level of persecution. See Hoxha v. Ashcroft, 319
F.3d 1179, 1182 (9th Cir. 2003).
In assessing Renaldo’s future fear of persecution, the IJ declined to apply the
disfavored group analysis and distinguished Sael v. Ashcroft, 386 F.3d 922 (9th
Cir. 2004), because Renaldo is not Chinese and Sael did not involve a claim for
withholding of removal. The BIA agreed with the IJ’s findings. In light of our
decisions in Tampubolon v. Holder, 610 F.3d 1056 (9th Cir. 2010) and Wakkary,
558 F.3d at 1064-65, we remand for the agency to consider in the first instance
whether Renaldo is entitled to withholding of removal under the disfavored group
analysis. See INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam).
Finally, substantial evidence supports the BIA’s denial of Renaldo’s CAT
claim because Renaldo failed to demonstrate a likelihood of torture upon return to
Indonesia. See Wakkary, 558 F.3d at 1067-68. Renaldo’s contention the IJ made a
factual error when considering his CAT claim is not supported by the record.
Each party shall bear its own costs for this petition for review.
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PETITION FOR REVIEW DENIED in part; GRANTED in part;
REMANDED.
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