                                                                           FILED
                             NOT FOR PUBLICATION                            JUL 19 2010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 GILBERT WATUNG,                            No. 07-72309

               Petitioner,                       Agency No. A096-364-544

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

               Respondent.



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

                             Submitted June 29, 2010 **

Before:        ALARCÓN, LEAVY, and GRABER, Circuit Judges.

       Edwin Gilbert Watung, 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 and withholding

of removal, and his application for cancellation of removal. We have jurisdiction


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

findings, Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir. 2009), and review de

novo claims of due process violations, Martinez-Rosas v. Gonzales, 424 F.3d 926,

930 (9th Cir. 2005). We deny in part, grant in part, and dismiss in part the petition

for review.

         The record does not compel the conclusion that Watung established changed

circumstances to excuse his 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). Accordingly, we deny the petition for review as to Watung’s asylum

claim.

         Substantial evidence supports the agency’s determination that the incidents

Watung suffered did not rise to the level of persecution. See Prasad v. INS, 47

F.3d 336, 339-40 (9th Cir. 1995). The agency did not consider Watung’s

application for withholding of removal under the disfavored group analysis,

however. In light of our recent decisions in Wakkary and Tampubolon v. Holder,

No. 06-70811, 2010 WL 2541610 at *5 (9th Cir. June 25, 2010), we remand for

the BIA to assess Watung’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).


                                            2                                  07-72309
      We lack jurisdiction to review the agency’s discretionary determination that

Watung failed to show exceptional and extremely unusual hardship to a qualifying

relative. See Martinez-Rosas, 424 F.3d at 930.

      Watung’s contention that the agency deprived him of due process by

misapplying the law to the facts of his case does not state a colorable due process

claim. See id. (“[t]raditional abuse of discretion challenges recast as alleged due

process violations do not constitute colorable constitutional claims that would

invoke our jurisdiction.”); see also Sanchez-Cruz v. INS, 255 F.3d 775, 779 (9th

Cir. 2001) (holding that the “misapplication of case law” may not be reviewed).

      Watung’s request for attorney’s fees is denied.

      PETITION FOR REVIEW DENIED in part; GRANTED in part;

DISMISSED in part; REMANDED.




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