Sorian Kwek v. Holder ( 2012 )

FILED
NOT FOR PUBLICATION MAR 22 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
SOFIAN KWEK; et al., No. 08-74612
Petitioner, Agency Nos. A098-648-172
A098-648-173
v. A098-648-174
A098-648-175
ERIC H. HOLDER Jr., Attorney General,
MEMORANDUM *
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 6, 2012 **
Before: B. FLETCHER, REINHARDT, and TASHIMA, Circuit Judges.
Sofian Kwek and his family, natives and citizens of Indonesia, petition for
review of the Board of Immigration Appeals’ order dismissing their appeal from an
immigration judge’s decision denying their application for asylum, withholding of
removal, and relief 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 de novo the agency’s legal
determinations and review 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.
In evaluating Kwek’s asylum and withholding of removal claims, the agency
appears to have concluded the attack that occurred at Kwek’s rice mill and the
attack on Kwek’s son were random acts of violence and not a basis for relief.
Substantial evidence does not support this finding. See Sinha v. Holder, 564 F.3d
1015, 1022 (9th Cir. 2009) (“What the IJ described is not random violence, but
violence with a distinct racial slant.”). Accordingly, because the agency did not
consider these incidents in evaluating Kwek’s claim of past persecution and his
fear of future persecution, as a member of disfavored groups, we grant the petition
with respect to petitioners’ asylum and withholding of removal claims, and remand
for further proceedings consistent with this disposition. See INS v. Ventura, 537
U.S. 12, 16-18 (2002) (per curiam).
With respect to CAT relief, Kwek has failed to establish a clear probability
he faces torture if removed to Indonesia. See, Zheng v. Holder, 644 F.3d 829, 835
(9th Cir. 2011) (“To receive relief under CAT, Petitioner has the burden of
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showing that he is more likely than not to be tortured in the country of removal.”)
(citation and internal quotation omitted).
The government shall bear the costs for this petition for review.
PETITION FOR REVIEW GRANTED in part; DENIED in part;
REMANDED.
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