Andree Kurniawan v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION APR 03 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ANDREE KURNIAWAN, No. 11-71909
Petitioner, Agency No. A088-486-604
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 12, 2013 **
Before: PREGERSON, REINHARDT, and W. FLETCHER, Circuit Judges.
Andree Kurniawan, 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 factual
findings. Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006). We
review de novo claims of due process violations in deportation proceedings.
Antonio-Cruz v. INS, 147 F.3d 1129, 1131 (9th Cir. 1998). We deny in part and
grant in part the petition for review, and remand.
Substantial evidence supports the agency’s denial of CAT relief because
Kurniawan failed to establish that it is more likely than not that he will be tortured
if he returns to Indonesia. See Wakkary v. Holder, 558 F.3d 1049, 1067-68 (9th
Cir. 2009).
Kurniawan testified that the harm he suffered in Indonesia included being
robbed on four occasions by people who made derogatory comments about his
Chinese ethnicity, and having rocks thrown at his house by people who also
shouted ethnic slurs. The BIA found that these incidents did not rise to the level of
persecution, and accordingly denied asylum and withholding of removal.
Substantial evidence does not support this finding. See Ndom v. v. Ashcroft, 384
F.3d 743, 751 (9th Cir.2004) (concluding the cumulative effect of harms the
petitioner suffered rose to the level of persecution). Because the BIA expressly
declined to address nexus in its analysis, we remand for it to do so in the first
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instance. See INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam). In light of
this conclusion, we do not address Kurniawan’s due process argument.
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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