                                                                           FILED
                               NOT FOR PUBLICATION                          SEP 28 2010

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




                               FOR THE NINTH CIRCUIT



EDWIN SITUMEANG;                                   No. 05-75577
DANIEL-EDGAR HASUDUNGAN,
                                                   Agency Nos. A093-323-123
               Petitioners,                                    A078-020-322

  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.

       Edwin Situmeang and Daniel-Edgar Hasudungan, natives and citizens of

Indonesia, petition for review of the Board of Immigration Appeals’ (“BIA”)

orders dismissing their appeal from an immigration judge’s decision denying their

applications for withholding of removal and protection under the Convention

          *
             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).
Against Torture (“CAT”). We have jurisdiction under 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.

      Substantial evidence supports the agency’s finding that petitioners’

experiences, including a robbery during which Hasudungan was injured, do not

constitute past persecution, see Hoxha v. Ashcroft, 319 F.3d 1179, 1181-82 (9th

Cir. 2003), and petitioners have not demonstrated any basis for past persecution

under Hernandez-Ortiz v. Gonzales, 496 F.3d 1042, 1045-46 (9th Cir. 2007).

      However, the BIA did not apply the disfavored group analysis to petitioners’

claim that they faced a clear probability of future persecution on account of their

Christian religion. In light of our recent intervening decision in Tampubolon v.

Holder, 610 F.3d 1056, 1062 (9th Cir. 2010), we remand for the BIA to assess

petitioners’ withholding of removal claims 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).




                                          2                                    05-75577
      Substantial evidence supports the agency’s denial of petitioners’ CAT claim

because petitioners failed to demonstrate a likelihood of torture upon return to

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

      PETITION FOR REVIEW DENIED in part; GRANTED in part;

REMANDED.




                                          3                                    05-75577
                                                                               FILED
                                                                                SEP 28 2010

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

N.R. SMITH, Circuit Judge, dissenting in part:

      I dissent as to the panel’s holding on the past persecution finding.
