Harijono Tan v. Eric H. Holder Jr.

FILED
NOT FOR PUBLICATION MAR 13 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
HARIJONO TAN, No. 08-73871
Petitioner, Agency No. A095-635-511
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
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.
Harijono Tan, 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 (“IJ”) decision denying his application for asylum,
withholding of removal, and protection under the Convention Against Torture
*
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).
(“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for
substantial evidence, Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir. 2009), and
we dismiss in part and grant in part the petition for review, and remand.
The IJ found that Tan’s asylum application was untimely, Tan was not
credible with respect to his Christianity claims, and denied Tan’s CAT claim. Tan
did not challenge these findings to the BIA, and we lack jurisdiction to consider
them. Accordingly, we dismiss the petition as to these claims. See Barron v.
Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004).
With regard to his withholding of removal claim based on his Chinese
ethnicity, the IJ denied Tan’s claim on the merits, rather than credibility. See
Kalubi v. Ashcroft, 364 F.3d 1134, 1137 (9th Cir. 2004) (in the absence of an
explicit credibility finding, petitioner’s testimony is taken as true). The record
does not compel the conclusion that Tan established past persecution based on the
extortion suffered by his father. See Gormley v. Ashcroft, 364 F.3d 1172, 1177
(9th Cir. 2004) (random criminal acts bore no nexus to a protected ground).
However, in assessing Tan’s future fear, the IJ did not have the benefit of our
intervening decision in Wakkary v. Holder, 558 F.3d at 1064-67. Accordingly, we
grant the petition for review with respect to Tan’s withholding of removal claim
based on his Chinese ethnicity, and we remand for the BIA to apply the disfavored
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group analysis in the first instance. See INS v. Ventura, 537 U.S. 12, 16-18 (2002)
(per curiam).
Each party shall bear its own costs for this petition for review.
PETITION FOR REVIEW DISMISSED in part; GRANTED in part;
REMANDED.
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