                                                                           FILED
                             NOT FOR PUBLICATION                            JUN 03 2011

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




                             FOR THE NINTH CIRCUIT



ALEX LAMDJANI,                                   No. 08-72891

               Petitioner,                       Agency No. A075-731-148

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



                      On Petition for Review of an Order of the
                          Board of Immigration Appeals

                             Submitted May 24, 2011 **

Before:        PREGERSON, THOMAS, and PAEZ, Circuit Judges.

       Alex Lamdjani, a native and citizen of Indonesia, petitions for review of the

Board of Immigration Appeals’ order dismissing his appeal from an immigration

judge’s decision denying his application for asylum, withholding of removal, and

relief under the Convention Against Torture (“CAT”). We have jurisdiction under


          *
             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).
8 U.S.C. § 1252. We review for substantial evidence the agency’s factual findings,

and we review de novo the agency’s legal determinations. Wakkary v. Holder, 558

F.3d 1049, 1056 (9th Cir. 2009). We deny in part and grant in part the petition for

review, and we remand.

      The record does not compel the conclusion that Lamdjani established he

qualified for an exception to the timely-filing requirement. See 8 C.F.R. §§

1208.4(a)(4), (5). Accordingly, his asylum claim fails.

      Substantial evidence supports the agency’s denial of Lamdjani’s CAT claim

because he failed to show it is more likely than not that he will be tortured by or

with the consent or acquiescence of the government if returned to Indonesia. See

Wakkary, 558 F.3d at 1067-68.

      Among other things, Lamdjani presented evidence of three incidents of

physical harm, including a beating by four native Indonesians and another instance

where native Indonesians attacked him and broke his arm. With respect to past

persecution, substantial evidence does not support the agency’s determination that

the harms Lamdjani suffered did not rise to the level of persecution. See Korablina

v. INS, 158 F.3d 1038, 1044-45 (9th Cir. 1998). Further, in analyzing future fear,

the agency did not assess Lamdjani’s claim under a disfavored group analysis.

Accordingly, and in light of our intervening decisions in Tampubolon v. Holder,


                                           2                                    08-72891
610 F.3d 1056 (9th Cir. 2010), and Wakkary v. Holder, 558 F.3d 1049 (9th

Cir. 2009), we grant the petition for review with respect to Lamdjani’s withholding

of removal claim, and remand for further proceedings consistent with this

disposition. See 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 FOR REVIEW DENIED in part; GRANTED in part;

REMANDED.




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