FILED
NOT FOR PUBLICATION NOV 24 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
STIEN BAWENGAN, No. 08-72337
Petitioner, Agency No. A095-309-834
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.
Stien Bawengan, a native and citizen of Indonesia, petitions for review of
the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an
immigration judge’s decision (“IJ”) denying her 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 factual findings and de novo legal questions. 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 Bawengan filed her asylum
application within a reasonable period of time given any changed circumstances.
See 8 C.F.R. § 1208(a)(4); see also Husyev v. Mukasey, 528 F.3d 1172, 1178-81
(9th Cir. 2008). Accordingly, we deny the petition as to her asylum claim.
Bawengan’s due process contention that the IJ was prejudiced fails, because
the record shows the proceedings were not “so fundamentally unfair that
[Bawengan] was prevented from reasonably presenting her case.” See Colmenar v.
INS, 210 F.3d 967, 971 (9th Cir. 2000) (internal citation and quotation omitted).
Substantial evidence supports that agency’s denial of Bawengan’s CAT
claim because Bawengan failed to show it is more likely than not that she will be
tortured if returned to Indonesia. See Wakkary, 558 F.3d at 1067-68. Accordingly,
we deny the petition as to Bawengan’s CAT claim.
Substantial evidence also supports the agency’s finding that Bawengan’s
mistreatment by Muslims did not rise to the level of persecution. See id. at 1059-
1060. However, in finding Bawengan did not face a clear probability of
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persecution, the agency did not apply the disfavored group analysis to Bawengan’s
claim. Because the agency did not have the benefit of our intervening decisions in
Wakkary and Tampubolon v. Holder, 610 F.3d 1056 (9th Cir. 2010), we remand
for the BIA to assess Bawengan’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).
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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