                                                                           FILED
                              NOT FOR PUBLICATION                           NOV 24 2010

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




                              FOR THE NINTH CIRCUIT



BARITA LUMBAN TOBING,                             No. 08-70039

               Petitioner,                        Agency No. A095-630-004

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

               Respondent.



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

                             Submitted November 16, 2010 **

Before:        TASHIMA, BERZON, and CLIFTON, Circuit Judges.

       Barita Lumban Tobing, 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 (“IJ”) denying his application for 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 factual

findings and review de novo 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 IJ denied Tobing’s asylum claim as time-barred. Tobing does not

challenge this dispositive finding in his opening brief.

      Substantial evidence supports the agency’s denial of Tobing’s claim for

CAT relief because he failed to show it is more likely than not he will be tortured if

returned to Indonesia. See Wakkary, 558 F.3d at 1068.

      Substantial evidence also supports the IJ’s finding that the incidents Tobing

suffered in school and the problems he had with his business partner did not rise to

the level of persecution. See id. at 1059-60. In addition, the record does not

compel the conclusion that Tobing has established a pattern or practice of

persecution of Christians in Indonesia. See id. at 1060-62. However, in denying

Tobing’s withholding of removal claim, the agency did not apply the disfavored

group analysis. Because the agency did not have the benefit of our intervening

decision in Tampubolon v. Holder, 610 F. 3d 1056, 1062 (9th Cir. 2010), we

remand for the agency to assess Tobing’s withholding of removal claim under the




                                           2                                     08-70039
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).

      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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