                                                                            FILED
                             NOT FOR PUBLICATION                             JUN 11 2010

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




                             FOR THE NINTH CIRCUIT



ANDREAS BUNTARAN,                                No. 07-74659

               Petitioner,                       Agency No. A096-357-126

  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.

       Andreas Buntaran, a native and citizen of Indonesia, petitions for review of

the Board of Immigration Appeals’ (“BIA”) order summarily affirming an

immigration judge’s (“IJ”) decision denying his application for asylum,

withholding of removal, and relief under the Convention Against Torture (“CAT”).


          *
             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).
We have jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law

and review for substantial evidence factual findings. Husyev v. Mukasey, 528 F.3d

1172, 1177 (9th Cir. 2008). We deny in part and grant in part the petition for

review.

      The record does not compel the conclusion that changed circumstances

excused the untimely filing of Buntaran’s asylum application. See 8 C.F.R. §

1208.4(a)(4), (5). Therefore, we deny the petition as to Buntaran’s asylum claim.

      Although substantial evidence does not support the IJ’s finding that

Buntaran’s encounter with the navy official was not on account of his Chinese

ethnicity, see Mihalev v. Ashcroft, 388 F.3d 722, 727-28 (9th Cir. 2004),

substantial evidence supports the IJ’s determination that Buntaran failed to

establish he suffered any harm that, even considered cumulatively, rose to the level

of persecution, see Wakkary v. Holder, 558 F.3d 1049, 1059-60 (9th Cir. 2009);

see also Prasad v. INS, 47 F.3d 336, 339-40 (9th Cir. 1995).

      The BIA did not address Buntaran’s contention that he has a clear

probability of persecution as a member of a disfavored group. In light of our

decision in Wakkary, we grant and remand for the BIA to assess Buntaran’s

withholding of removal claim under the disfavored group analysis in the first

instance. See INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam).


                                          2                                      07-74659
      Lastly, Buntaran does not challenge the denial of CAT relief in his opening

brief. See Castro-Perez v. Gonzales, 409 F.3d 1069, 1072 (9th Cir. 2005) (issues

not specifically and distinctly argued in the opening brief are waived).

      Each party shall bear its own costs for this petition for review.

      PETITION FOR REVIEW DENIED in part; GRANTED in part;

      REMANDED.




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