Siahaan v. Holder , 361 F. App'x 818 ( 2010 )

FILED
NOT FOR PUBLICATION JAN 07 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
YOEL NICSON SIAHAAN, No. 07-71245
Petitioner, Agency No. A095-630-231
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
**
Submitted December 15, 2009
Before: GOODWIN, WALLACE, and FISHER, Circuit Judges.
Yoel Nicson Siahaan, a native and citizen of Indonesia, petitions for review
of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from
the immigration judge’s (“IJ”) decision denying his application for asylum and
withholding of removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We
*
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).
review for substantial evidence factual findings. See Wakkary v. Holder, 558 F.3d
1049, 1056 (9th Cir. 2009). We grant in part and deny in part the petition for
review and remand.
Siahaan contends he established changed circumstances excusing his
untimely asylum application based on the United States’ invasion of Iraq, which
Siahaan claims increased Muslim violence against Christians in Indonesia, and
based on his new position as a church deacon. With respect to the invasion of Iraq
contention, the record does not compel the conclusion that Siahaan established
changed circumstances excusing his untimely asylum application. See 8 C.F.R. §
1208.4(a)(4); Ramadan v. Gonzales, 479 F.3d 646, 656–58 (9th Cir. 2007) (per
curiam). With respect to his church deacon contention, however, we are left with
no specific direction as to the applicability of 8 U.S.C. § 1158(a)(2)(D) and 8
C.F.R. § 1208.4. The BIA did not address this argument. Therefore, we remand
for the BIA to consider this issue and determine the merits initially. See Sagaydak
v. Gonzales, 405 F.3d 1035, 1040–41 (9th Cir. 2005) (BIA is not free to “ignore
arguments raised by a petitioner”).
Substantial evidence supports the IJ’s determination that Siahaan failed to
establish a pattern or practice of persecution against Christians in Indonesia
because he did not establish “the government was unable or unwilling to control
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the groups responsible for the violence.” Lolong v. Gonzales, 484 F.3d 1173,
1180–81 (9th Cir. 2007) (en banc); see also Wakkary, 558 F.3d at 1061–62.
In analyzing Siahaan’s future fear, the agency declined to apply the
disfavored group analysis set forth in Sael v. Ashcroft, 386 F.3d 922, 927 (9th Cir.
2004), to Siahaan’s withholding of removal claim. Intervening case law holds the
disfavored group analysis does apply. See Wakkary, 558 F.3d at 1062–65. In
addition, the BIA should address Siahaan’s argument that he would suffer future
persecution as a “Westerner” or person associated with America. See Sagaydak,
405 F.3d at 1040–41.
Therefore, we grant the petition in part and remand Siahaan’s asylum and
withholding of removal claims for further proceedings consistent with this
disposition. See INS v. Ventura, 537 U.S. 12, 16–18 (2002) (per curiam).
The government shall bear the costs of this petition for review.
PETITION FOR REVIEW GRANTED in part; DENIED in part;
REMANDED.
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