                                                                           FILED
                             NOT FOR PUBLICATION                            JUN 04 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



RUDY HUTABARAT,                                  No. 07-73150

               Petitioner,                       Agency No. A078-019-889

  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.

       Rudy Hutabarat, 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 protection 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, Wakkary

v. Holder, 558 F.3d 1049, 1056 (9th Cir. 2009), and we grant in part and deny in

part the petition for review.

      The record does not compel the conclusion that changed or extraordinary

circumstances excused the untimely filing of Hutabarat’s asylum application. See

8 C.F.R. § 1208.4(a)(4), (5); Ramadan v. Gonzales, 479 F.3d 646, 656-58 (9th Cir.

2007) (per curiam). Accordingly, Hutabarat’s asylum claim fails.

      Substantial evidence supports the agency’s denial of CAT relief because

Hutbarat failed to establish it is more likely than not that he will be tortured upon

return to Indonesia. See Wakkary, 558 F.3d at 1067-68. Hutbarat’s contention that

the agency misapplied the law to his CAT claim is without merit.

      Substantial evidence also supports the agency’s determination that

Hutabarat’s experiences in Indonesia, including harassment, discrimination, and a

physical attack, did not constitute past persecution. See id. at 1059-60.

      Hutabarat argued to the BIA that he feared future persecution on account of

his Batak-Chinese ethnicity and Christian religion. The agency, taking Hutabarat’s

testimony as true, did not consider Hutabarat’s application for withholding of

removal under the disfavored group analysis. In light of our recent decisions in

Wakkary and Tampubolon v. Holder, 598 F.3d 521, 526-27 (9th Cir. 2010), we


                                           2                                     07-73150
remand for the BIA to assess Hutabarat’s withholding of removal claim under the

disfavored group analysis in the first instance. See Wakkary at 1067; see also 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 GRANTED in part; DENIED in part; REMANDED.




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