                                                                            FILED
                             NOT FOR PUBLICATION                             JUN 08 2010

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




                             FOR THE NINTH CIRCUIT



HOTMAN NAPITUPULU,                               No. 07-70768

               Petitioner,                       Agency No. A078-020-412

  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.

       Hotman Napitupulu, 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 deny in part and grant in

part the petition for review, and we remand.

       The record does not compel the conclusion that changed circumstances

excused Napitupulu’s untimely filed asylum application. See 8 C.F.R.

§ 1208.4(a)(4); Ramadan v. Gonzales, 479 F.3d 646, 656-58 (9th Cir. 2007) (per

curiam). Napitupulu’s contention that the BIA’s decision concerning changed

circumstances was boilerplate is without merit. Accordingly, Napitupulu’s asylum

claim fails.

       Substantial evidence supports the BIA’s determination that the one attack

and beating Napitupulu suffered in Indonesia did not rise to the level of

persecution. See Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir. 2003). In

analyzing Napitupulu’s withholding of removal claim, the BIA declined to apply

the disfavored group analysis set forth in Sael v. Ashcroft, 386 F.3d 922, 927-29

(9th Cir. 2004). Because intervening case law holds the disfavored group analysis

applies to withholding of removal claims, see Wakkary, 558 F.3d at 1062-65, we

remand to the agency for reconsideration whether Napitupulu is entitled to

withholding of removal, see INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per

curiam): see also Tampubolon v. Holder, 598 F.3d 521, 526-27 (9th Cir. 2010)


                                          2                                   07-70768
(“any reasonable factfinder would be compelled to conclude on this record that

Christian Indonesians are a disfavored group.”).

      In his opening brief, Napitupulu does not challenge the BIA’s denial of his

application for CAT relief. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th

Cir. 1996) (issues not specifically raised and argued in a party’s opening brief are

waived).

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

      PETITION GRANTED in part; DENIED in part; REMANDED.




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