                                                                           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                             NOT FOR PUBLICATION                            JUN 01 2010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



HERU ANDY PARDEDE,                               No. 07-74023

               Petitioner,                       Agency No. A097-206-443

  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.

       Heru Andy Pardede, a native and citizen of Indonesia, petitions for review of

a Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an

immigration judge’s decision denying his application for withholding of removal.

We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence,


          *
             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).
Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir. 2009), and we grant the petition

for review.

         Substantial evidence supports the agency’s finding that the harm Pardede

experienced during the student protests and the burning of his church did not rise

to the level of persecution. See Prasad v. INS, 47 F.3d 336, 339-340 (9th Cir.

1995).

         In analyzing Pardede’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, 558 F.3d at 1062-65;

Tampubolon v. Holder, 598 F.3d 521, 525-27 (9th Cir. 2010) (“any reasonable

factfinder would be compelled to conclude on this record that Christian

Indonesians are a disfavored group”). 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, in assessing withholding of removal, the BIA should consider Pardede’s

pattern or practice of persecution and his social group claims. See Sagaydak v.

Gonzales, 405 F.3d 1035, 1040 (9th Cir. 2005) (“the BIA [is] not free to ignore

arguments raised by a petitioner.”).


                                           2                                  07-74023
PETITION FOR REVIEW GRANTED; REMANDED.




                      3                  07-74023
