FILED
NOT FOR PUBLICATION APR 26 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JAMES ADAM; MIEKE MOUTJE No. 09-70178
POSUMAH,
Agency Nos. A096-361-799
Petitioners, A096-361-800
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 17, 2012 **
Before: LEAVY, PAEZ, and BEA, Circuit Judges.
James Adam and Mieke Moutje Posumah, natives and citizens of Indonesia,
petition pro se for review of the Board of Immigration Appeals’ (“BIA”) order
dismissing their appeal from an immigration judge’s decision denying their
*
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).
application for withholding of removal and protection under the Convention
Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We
review de novo questions of law and for substantial evidence factual findings.
Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir. 2009). We grant in part and
deny in part the petition for review, and we remand.
Petitioners testified that, following a speech by a fundamentalist Muslim
provocateur, Muslims in Lombok targeted churches and Christians, burning down
petitioners’ church and taking most of their possessions, many of which were
scattered and burned outside their house. With respect to past persecution,
substantial evidence does not support the BIA’s finding that petitioners were
merely victims of civil unrest. See Sinha v. Holder, 564 F.3d 1015, 1020-23 (9th
Cir. 2009) (incidents were not random violence or mere civil unrest where violence
did not affect populus as a whole and where individuals of one ethnicity were “the
specific targets of the widespread violence”). With respect to future persecution,
the agency did not have the benefit of our intervening decisions in Wakkary and
Tampubolon v. Holder, 610 F.3d 1056 (9th Cir. 2010), when it declined to apply
disfavored group analysis. Further, with respect to the reasonableness of
relocation, before the BIA issued its decision, petitioners filed additional
documentation indicating James Adam has been diagnosed with kidney failure and
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is on dialysis. It does not appear that the BIA considered this new evidence.
Accordingly, we grant the petition with respect to petitioners’ withholding of
removal claim, and we remand to the BIA for further proceedings consistent with
this disposition. See INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam); see
also Brezilien v. Holder, 569 F.3d 403, 413-15 (9th Cir. 2009).
Finally, with respect to CAT protection, substantial evidence supports the
BIA’s denial of relief because petitioners failed to establish it is more likely than
not that they would be tortured if returned to Indonesia. See Wakkary, 558 F.3d at
1067-68. Accordingly, we deny the petition as to the CAT claim.
Each party shall bear its own costs for this petition for review.
PETITION FOR REVIEW GRANTED in part; DENIED in part;
REMANDED.
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