HERRY TARIGAN V. ERIC H. HOLDER JR., No. 08-71617 (9th Cir. 2013)
Annotate this Case
Download PDF
FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MAR 21 2013 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT HERRY DASTANTA TARIGAN; DEBORA SIMAMORA; SAMUEL ALTASYET SIMAMORA, No. 08-71617 Agency Nos. A095-630-043 A095-355-820 A095-629-788 Petitioners, v. ERIC H. HOLDER, Jr., Attorney General, MEMORANDUM * Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted December 10, 2012 ** Before: HUG, FARRIS, and LEAVY, Circuit Judges. Herry Dastanta Tarigan ( Herry ), Deborah Simamora ( Deborah ), and Samuel Altasyet Simamora ( Samuel ), natives and citizens of Indonesia, petition * 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). Accordingly, petitioners request for oral argument is denied. for review the Board of Immigration Appeals ( BIA ) order dismissing their appeal from an immigration judge s ( IJ ) decision denying their applications for asylum, withholding of removal, and relief under the Convention Against Torture ( CAT ). Our jurisdiction is governed by 8 U.S.C. ยง 1252. We review for substantial evidence factual findings and review de novo legal determinations. Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir. 2009). We deny in part, dismiss in part, and grant in part the petition for review, and we remand. Herry and Samuel do not challenge the agency s dispositive determination that their asylum applications are time-barred. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996) (issues not specifically raised and argued in a party s opening brief are waived). Accordingly, review of their asylum claims is denied. We dismiss Herry s claim for humanitarian asylum because he failed to exhaust this claim before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). In assessing petitioners claims, the agency did not have the benefit of our opinions in Wakkary or Tampubolon v. Holder, 610 F.3d 1056 (9th Cir. 2010). Accordingly, we grant the petition with respect to Deborah s asylum and withholding of removal claims and Herry and Samuel s withholding of removal claims. We remand for the agency to analyze these claims under a disfavored 2 08-71617 group analysis in the first instance. See INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam); see also Wakkary, 558 F.3d at 1062-65 (disfavored group analysis applies to withholding of removal). Substantial evidence supports the agency s denial of CAT relief because petitioners failed to demonstrate it is more likely than not they will be tortured if returned to Indonesia. See Wakkary, 558 F.3d at 1067-68. Each party shall bear their own costs on appeal. PETITION FOR REVIEW DENIED in part; DISMISSED in part; GRANTED in part; REMANDED. 3 08-71617
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
