                              NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                         FILED
                              FOR THE NINTH CIRCUIT                          SEP 28 2010

                                                                        MOLLY C. DWYER, CLERK
                                                                          U .S. C O U R T OF APPE ALS

NANSER SILABAN,                                   No. 07-74925

               Petitioner,                        Agency No. A095-635-760

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

               Respondent.



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

                             Submitted September 13, 2010 **

Before:        SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.

       Nanser Silaban, 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 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).
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

grant the petition for review and remand.

      Substantial evidence supports the BIA’s determination that Silaban did not

suffer past persecution because the incidents he suffered in Indonesia, including

threats, discrimination, and minor physical harm, did not rise to the level of

persecution. See Hoxha v. Ashcroft, 319 F.3d 1179, 1181-82 (9th Cir. 2003).

      The BIA concluded that Silaban could not demonstrate a clear probability of

future persecution in part because his remaining family members continued to

practice their Christian religion without difficulty. This finding is not supported by

substantial evidence, because as a religious leader who received individualized

threats, Silaban was not similarly situated to his remaining family members. See

Lim v. INS, 224 F.3d 929, 935 (9th Cir. 2000). The BIA also concluded that as an

Indonesian Christian, Silaban was not a member of a disfavored group. In light of

our recent intervening decision in Tampubolon v. Holder, 610 F.3d 1056 (9th Cir.

2010), we remand for the BIA to assess Silaban’s withholding of removal claim

under the disfavored group analysis in the first instance. See Wakkary, 558 F.3d at

1067, see also INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam).

      PETITION FOR REVIEW GRANTED; REMANDED.


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