Ferdinandus Nahak v. Eric Holder, Jr. , 535 F. App'x 573 ( 2013 )

FILED
NOT FOR PUBLICATION JUL 31 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
FERDINANDUS NAHAK, No. 10-70358
Petitioner, Agency No. A096-361-798
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 24, 2013 **
Before: ALARCÓN, CLIFTON, and CALLAHAN, Circuit Judges.
Ferdinandus Nahak, 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 withholding of removal
and protection under the Convention Against Torture (“CAT”). We have
jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the
*
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).
agency’s factual findings. Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir. 2009).
We deny in part and grant in part the petition for review, and we remand.
Substantial evidence supports the BIA’s denial of CAT relief because Nahak
failed to demonstrate it is more likely than not he will be tortured if returned to
Indonesia. See Wakkary, 558 F.3d at 1068. Accordingly, Nahak’s CAT claim fails.
With respect to withholding of removal, the BIA concluded that, assuming
Nahak testified credibly and established past persecution, circumstances have
fundamentally changed so as to rebut the presumption of future persecution. But
the BIA did not address the particular risk Nahak faces as a member of the Maluku
Sovereignty Front. See Ali v. Holder, 637 F.3d 1025, 1030 (9th Cir. 2011) (agency
must make an “individualized determination” of how changed country
circumstances might affect a person in petitioner’s specific situation). Accordingly,
we grant the petition with respect to withholding of removal, and we remand for the
agency to make the required individualized determination. In light of our
conclusions, we do not reach Fransiscus’s disfavored group argument.
Each party shall bear its own costs for this petition for review.
PETITION FOR REVIEW DENIED in part; GRANTED in part;
REMANDED.
2 10-70358