Napitupulu v. Holder , 382 F. App'x 594 ( 2010 )

FILED
NOT FOR PUBLICATION JUN 08 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
HOTMAN NAPITUPULU, No. 07-70768
Petitioner, Agency No. A078-020-412
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 25, 2010 **
Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.
Hotman Napitupulu, 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 for substantial evidence, Wakkary
v. Holder, 558 F.3d 1049, 1056 (9th Cir. 2009), and we deny in part and grant in
part the petition for review, and we remand.
The record does not compel the conclusion that changed circumstances
excused Napitupulu’s untimely filed 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). Napitupulu’s contention that the BIA’s decision concerning changed
circumstances was boilerplate is without merit. Accordingly, Napitupulu’s asylum
claim fails.
Substantial evidence supports the BIA’s determination that the one attack
and beating Napitupulu suffered in Indonesia did not rise to the level of
persecution. See Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir. 2003). In
analyzing Napitupulu’s withholding of removal claim, the BIA declined to apply
the disfavored group analysis set forth in Sael v. Ashcroft, 386 F.3d 922, 927-29
(9th Cir. 2004). Because intervening case law holds the disfavored group analysis
applies to withholding of removal claims, see Wakkary, 558 F.3d at 1062-65, we
remand to the agency for reconsideration whether Napitupulu is entitled to
withholding of removal, see INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per
curiam): see also Tampubolon v. Holder, 598 F.3d 521, 526-27 (9th Cir. 2010)
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(“any reasonable factfinder would be compelled to conclude on this record that
Christian Indonesians are a disfavored group.”).
In his opening brief, Napitupulu does not challenge the BIA’s denial of his
application for CAT relief. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th
Cir. 1996) (issues not specifically raised and argued in a party’s opening brief are
waived).
Each party shall bear its own costs for this petition for review.
PETITION GRANTED in part; DENIED in part; REMANDED.
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