FILED
NOT FOR PUBLICATION JUN 01 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
IRENE CAROLIN SIWY, No. 08-72940
Petitioner, Agency No. A095-590-614
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 24, 2011 **
Before: PREGERSON, THOMAS, and PAEZ, Circuit Judges.
Irene Carolin Siwy, 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 denying her application for asylum, withholding of
removal, and relief 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. INS v. Elias-Zacarias, 502 U.S. 478, 481 & n.1 (1992). We deny in part
and grant in part the petition for review, and we remand.
The record does not compel the conclusion that Siwy’s untimely asylum
application is excused by changed or extraordinary circumstances. See 8 U.S.C.
§ 1158(a)(2)(D); Ramadan v. Gonzales, 479 F.3d 646, 657-58 (9th Cir. 2007) (per
curiam); Toj-Culpatan v. Holder, 612 F.3d 1088, 1091 (9th Cir. 2010) (per
curiam). Accordingly, Siwy’s asylum claim fails.
Substantial evidence supports the agency’s finding that the discrimination
Siwy faced as a child, the sexual harassment, and the fact that she witnessed
violence during the 1998 riots does not, cumulatively, rise to the level of
persecution. See Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir. 2003).
However, because the record compels the conclusion that Siwy was sexually
harassed on account of a protected ground, see Parussimova v. Mukasey, 555 F.3d
734, 740-41 (9th Cir. 2009) (“The Real ID Act requires that a protected ground
represent ‘one central reason’ for an asylum applicant’s persecution”), the agency’s
analysis of whether Siwy faces an individualized risk of harm, which focused only
on the documentary evidence, is insufficient. Moreover, in assessing her
withholding of removal claim, the BIA did not have the benefit of our intervening
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decision in Wakkary v. Holder, 558 F.3d 1049, 1064-67 (9th Cir. 2009), which
applied the disfavored group analysis to withholding of removal claims.
Accordingly, we grant Siwy’s petition for review as to her withholding of removal
claim and remand for the agency to consider in the first instance whether Siwy has
demonstrated a clear probability of future persecution based on a disfavored group
analysis. See INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam).
Finally, the BIA also failed to address Siwy’s claim for relief under CAT.
Accordingly, we also remand for the BIA to consider Siwy’s CAT claim in the first
instance. See id.
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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