Partogi v. Holder , 400 F. App'x 308 ( 2010 )

FILED
NOT FOR PUBLICATION OCT 25 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
SUBURIAN PARTOGI, No. 07-75065
Petitioner, Agency No. A095-630-044
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 19, 2010 **
Before: O’SCANNLAIN, TALLMAN, and BEA, Circuit Judges
Suburian Partogi, a native and citizen of Indonesia, petitions for review of
the Board of Immigration Appeals’ order dismissing his appeal from an
immigration judge’s (“IJ”) decision denying his application for asylum,
withholding of removal, and relief under the Convention Against Torture (“CAT”).
*
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).
We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence.
Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir. 2009). We deny in part and
grant in part the petition for review.
The record does not compel the conclusion that Partogi established changed
or extraordinary circumstances excusing the untimely filing of his asylum
application. See 8 C.F.R. § 1208.4(a); Ramadan v. Gonzales, 479 F.3d 646,
656-58 (9th Cir. 2007) (per curiam); Mutuku v. Holder, 600 F.3d 1210, 1212 (9th
Cir. 2010). Accordingly, Partogi’s asylum claim fails.
Substantial evidence supports the agency’s denial of CAT relief because
Partogi failed to establish it is more likely than not he will be tortured if returned to
Indonesia. See Wakkary, 558 F.3d at 1067-68.
The agency found Partogi established past persecution on account of his
Christian religion, but his presumption of a clear probability of persecution was
rebutted because he reasonably could relocate within Indonesia.1 Intervening case
law holds the disfavored group analysis applies to Christians in Indonesia.
Tampubolon v. Holder, 610 F.3d 1056, 1062 (9th Cir. 2010). Because the agency
did not have the benefit of our decision in Tampubolon, we remand for the agency
1
In reaching this conclusion, the agency did not apply the disfavored group
analysis.
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to apply the disfavored group analysis in its assessment of Partogi’s withholding of
removal claim. See Wakkary, 558 F.3d at 1067; see also INS v. Ventura, 537 U.S.
12, 16-18 (2002) (per curiam).
In light of our disposition, we do not reach Partogi’s contention that the IJ
was biased in his assessment of the evidence.
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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