Tato Nugroho v. Eric H. Holder Jr.

FILED
NOT FOR PUBLICATION APR 05 2012

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

TATO NUGROHO, No. 08-74895

Petitioner, Agency No. A095-635-777

v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted March 6, 2012 **

Before: B. FLETCHER, REINHARDT, and TASHIMA, Circuit Judges.

Tato Nugroho, a native and citizen of Indonesia, petitions for review of the

Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an

immigration judge’s decision denying his application for asylum, withholding of

removal, and protection 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 de novo legal determinations and

for substantial evidence factual findings. Wakkary v. Holder, 558 F.3d 1049, 1056

(9th Cir. 2009). We grant the petition for review, and we remand.

The agency found Nugroho’s asylum application untimely and found he

failed to establish changed or extraordinary circumstances excusing the delay. The

record supports the agency’s finding that Nugroho’s discovery of asylum through

compliance with special registration did not excuse his failure to meet the filing

deadline. See 8 C.F.R. § 1208.4(a)(4), (5). However, the record shows that the

death threats from Jemaah Islamiah after Nugroho left Indonesia for the United

States constitute changed circumstances. See 8 C.F.R. § 1208.4(a)(4); Vahora v.

Holder, 641 F.3d 1038, 1042-47 (9th Cir. 2011) (mistreatment and fear of

persecution before coming to United States did not preclude showing of changed

circumstances based on subsequent incidents, including disappearance of family

members and destruction of petitioner’s home, which materially affected his ability

to show a well-founded fear of persecution). Accordingly, we grant the petition

with respect to Nugroho’s asylum claim and remand for further proceedings

consistent with this disposition. See INS v. Ventura, 537 U.S. 12, 16-18 (2002)

(per curiam).

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 With respect to withholding of removal, substantial evidence supports the

agency’s determination that the harm Nugroho experienced during the riots, as a

Muslim shopkeeper, including the loss of his business, was not on account of a

protected ground. See Rostomian v. INS, 210 F.3d 1088, 1089 (9th Cir. 2000)

(petitioner did not establish attack “was anything more than an act of random

violence during a period of significant strife”). However, the record compels the

conclusion that, considered cumulatively, the incidents related to Nugroho’s

perceived apostasy rose to the level of persecution. See Krotova v. Gonzales, 416

F.3d 1080, 1084-87 (9th Cir. 2005) (cumulative effect of economic pressure,

physical violence, and serious restriction on ability to practice religion showed past

persecution); Ahmed v. Keisler, 504 F.3d 1183, 1194 (9th Cir. 2007) (cumulative

effect where petitioner was physically harmed at different times over a period of

years showed past persecution). Further, with respect to future fear, the BIA erred

in discounting Nugroho’s evidence of specific targeting and in referring, without

record support, to general tensions between perceived apostates and more orthodox

Muslim groups. Accordingly, we grant the petition with respect to Nugroho’s

withholding of removal claim, and we remand for further proceedings consistent

with this disposition, including, if appropriate, the application of the presumption

of future persecution. See 8 C.F.R. § 1208.16(b)(1)(i); Ventura, 537 U.S. at 16-18.

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 On remand, in light of the conclusions above, the agency should also

reassess Nugroho’s CAT claim.

PETITION FOR REVIEW GRANTED; REMANDED.

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