Lucas Budiono v. Eric H. Holder Jr., No. 08-72223 (9th Cir. 2011)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS APR 13 2011 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT LUCAS BUDIONO, a.k.a. Lu Han Hong, a.k.a. Budiono Lucas, No. 08-72223 Agency No. A075-660-448 Petitioner, MEMORANDUM * v. ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted April 5, 2011 ** Before: B. FLETCHER, CLIFTON, and BEA, Circuit Judges. Lucas Budiono, a native and citizen of Indonesia, petitions for review of the Board of Immigration Appeals order dismissing his appeal from an immigration judge s decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture ( CAT ). We have jurisdiction * 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). under 8 U.S.C. § 1252. We review de novo questions of law and review for substantial evidence 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 agency s denial of CAT relief because Budiono failed to establish it is more likely than not that he will be tortured in Indonesia by or with the acquiescence of a public official or other individual acting in an official capacity. See Wakkary, 558 F.3d at 1068. Further, the record does not compel the conclusion that Budiono experienced harms in Indonesia that rise to the level of past persecution. See Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir. 2003); Wakkary, 558 F.3d at 1059-60. However, in analyzing Budiono s fear of future persecution, the agency did not apply the disfavored group analysis set forth in Sael v. Ashcroft, 386 F.3d 922, 927-29 (9th Cir. 2004). In light of this and our intervening decisions in Tampubolon v. Holder, 610 F.3d 1056 (9th Cir. 2010), and Wakkary v. Holder, 558 F.3d 1049 (9th Cir. 2009), we remand for the agency to assess Budiono s asylum and withholding of removal claims under the disfavored group analysis in the first instance. See INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam). 2 08-72223 Each party shall bear its own costs for this petition for review. PETITION FOR REVIEW DENIED in part; GRANTED in part; REMANDED. 3 08-72223

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