Herry Tarigan v. Eric H. Holder Jr.

FILED
NOT FOR PUBLICATION MAR 21 2013

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

FOR THE NINTH CIRCUIT

HERRY DASTANTA TARIGAN; No. 08-71617
DEBORA SIMAMORA; SAMUEL
ALTASYET SIMAMORA,
Agency Nos. A095-630-043
Petitioners, A095-355-820
A095-629-788
v.

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

Respondent.

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

Submitted December 10, 2012 **

Before: HUG, FARRIS, and LEAVY, Circuit Judges.

Herry Dastanta Tarigan (“Herry”), Deborah Simamora (“Deborah”), and

Samuel Altasyet Simamora (“Samuel”), natives and citizens of Indonesia, petition

*
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). Accordingly, petitioners’
request for oral argument is denied.
for review the Board of Immigration Appeals’ (“BIA”) order dismissing their

appeal from an immigration judge’s (“IJ”) decision denying their applications for

asylum, withholding of removal, and relief under the Convention Against Torture

(“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for

substantial evidence factual findings and review de novo legal determinations.

Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir. 2009). We deny in part, dismiss

in part, and grant in part the petition for review, and we remand.

Herry and Samuel do not challenge the agency’s dispositive determination

that their asylum applications are time-barred. See Martinez-Serrano v. INS, 94

F.3d 1256, 1259-60 (9th Cir. 1996) (issues not specifically raised and argued in a

party’s opening brief are waived). Accordingly, review of their asylum claims is

denied. We dismiss Herry’s claim for humanitarian asylum because he failed to

exhaust this claim before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th

Cir. 2004).

In assessing petitioners’ claims, the agency did not have the benefit of our

opinions in Wakkary or Tampubolon v. Holder, 610 F.3d 1056 (9th Cir. 2010).

Accordingly, we grant the petition with respect to Deborah’s asylum and

withholding of removal claims and Herry and Samuel’s withholding of removal

claims. We remand for the agency to analyze these claims under a disfavored

2 08-71617
group analysis in the first instance. See INS v. Ventura, 537 U.S. 12, 16-18 (2002)

(per curiam); see also Wakkary, 558 F.3d at 1062-65 (disfavored group analysis

applies to withholding of removal).

Substantial evidence supports the agency’s denial of CAT relief because

petitioners failed to demonstrate it is more likely than not they will be tortured if

returned to Indonesia. See Wakkary, 558 F.3d at 1067-68.

Each party shall bear their own costs on appeal.

PETITION FOR REVIEW DENIED in part; DISMISSED in part;

GRANTED in part; REMANDED.

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