Farooq v. Holder , 380 F. App'x 714 ( 2010 )

FILED
NOT FOR PUBLICATION JUN 01 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
EDY SUMITRA RUSLI, No. 06-72256
Petitioner, Agency No. A095-575-772
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.
Edy Sumitra Rusli, 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 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 for substantial evidence, INS v.
Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992), and deny in part and grant in part the
petition for review.
The record does not compel the conclusion that Rusli’s difficulties in finding
an attorney established extraordinary circumstances excusing his untimely filed
asylum application. See 8 C.F.R. §§ 1208.4(a)(5); Husyev v. Mukasey, 528 F.3d
1172, 1181-82 (9th Cir. 2008). Accordingly, Rusli’s asylum claim is denied.
Substantial evidence also supports the agency’s finding that the incidents in
Rusli’s childhood where he was ridiculed, robbed, and struck by a stone
constituted harassment rather than persecution, see Hoxha v. Ashcroft, 319 F.3d
1179, 1182 (9th Cir. 2003) (holding that unfulfilled threats by citizens based on
ethnicity constitute harassment and not persecution), and that his experiences
during the May 1998 riots and encounter on his motorcycle in June 2000 also did
not amount to persecution, see Nagoulko v. INS, 333 F.3d 1012, 1016-18 (9th Cir.
2003).
In analyzing Rusli’s withholding of removal claim, the agency declined to
apply the disfavored group analysis set forth in Sael v. Ashcroft, 386 F.3d 922,
927-29 (9th Cir. 2004). Intervening case law holds the disfavored group analysis
applies to withholding of removal. See Wakkary v. Holder, 558 F.3d 1049, 1062-
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65 (9th Cir. 2009). Accordingly, we remand to the BIA to consider whether Rusli
is entitled to withholding of removal under Sael and Wakkary. See INS v. Ventura,
537 U.S. 12, 16-18 (2002) (per curiam). In addition, the BIA should consider
Rusli’s pattern or practice of persecution claim. See Sagaydak v. Gonzales, 405
F.3d 1035, 1040 (9th Cir. 2005) (“the BIA [is] not free to ignore arguments raised
by a petitioner.”).
Substantial evidence supports the agency’s denial of CAT relief because
Rusli failed to establish it is more likely than not he will be tortured in Indonesia.
See Wakkary, 558 F.3d at 1067-68.
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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