FILED
NOT FOR PUBLICATION JUN 03 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ALEX LAMDJANI, No. 08-72891
Petitioner, Agency No. A075-731-148
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.
Alex Lamdjani, 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, withholding of removal, and
relief under the Convention Against Torture (“CAT”). We have jurisdiction under
*
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).
8 U.S.C. § 1252. We review for substantial evidence the agency’s factual findings,
and we review de novo the agency’s legal determinations. 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 Lamdjani established he
qualified for an exception to the timely-filing requirement. See 8 C.F.R. §§
1208.4(a)(4), (5). Accordingly, his asylum claim fails.
Substantial evidence supports the agency’s denial of Lamdjani’s CAT claim
because he failed to show it is more likely than not that he will be tortured by or
with the consent or acquiescence of the government if returned to Indonesia. See
Wakkary, 558 F.3d at 1067-68.
Among other things, Lamdjani presented evidence of three incidents of
physical harm, including a beating by four native Indonesians and another instance
where native Indonesians attacked him and broke his arm. With respect to past
persecution, substantial evidence does not support the agency’s determination that
the harms Lamdjani suffered did not rise to the level of persecution. See Korablina
v. INS, 158 F.3d 1038, 1044-45 (9th Cir. 1998). Further, in analyzing future fear,
the agency did not assess Lamdjani’s claim under a disfavored group analysis.
Accordingly, and in light of our intervening decisions in Tampubolon v. Holder,
2 08-72891
610 F.3d 1056 (9th Cir. 2010), and Wakkary v. Holder, 558 F.3d 1049 (9th
Cir. 2009), we grant the petition for review with respect to Lamdjani’s withholding
of removal claim, and remand for further proceedings consistent with this
disposition. 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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