                                                                           FILED
                             NOT FOR PUBLICATION                            APR 03 2013

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




                             FOR THE NINTH CIRCUIT



ANDREE KURNIAWAN,                                No. 11-71909

               Petitioner,                       Agency No. A088-486-604

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

               Respondent.



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

                             Submitted March 12, 2013 **

Before:        PREGERSON, REINHARDT, and W. FLETCHER, Circuit Judges.

       Andree Kurniawan, 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 asylum, withholding of

removal, and relief 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. Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006). We

review de novo claims of due process violations in deportation proceedings.

Antonio-Cruz v. INS, 147 F.3d 1129, 1131 (9th Cir. 1998). We deny in part and

grant in part the petition for review, and remand.

      Substantial evidence supports the agency’s denial of CAT relief because

Kurniawan failed to establish that it is more likely than not that he will be tortured

if he returns to Indonesia. See Wakkary v. Holder, 558 F.3d 1049, 1067-68 (9th

Cir. 2009).

      Kurniawan testified that the harm he suffered in Indonesia included being

robbed on four occasions by people who made derogatory comments about his

Chinese ethnicity, and having rocks thrown at his house by people who also

shouted ethnic slurs. The BIA found that these incidents did not rise to the level of

persecution, and accordingly denied asylum and withholding of removal.

Substantial evidence does not support this finding. See Ndom v. v. Ashcroft, 384

F.3d 743, 751 (9th Cir.2004) (concluding the cumulative effect of harms the

petitioner suffered rose to the level of persecution). Because the BIA expressly

declined to address nexus in its analysis, we remand for it to do so in the first




                                           2                                        11-71909
instance. See INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam). In light of

this conclusion, we do not address Kurniawan’s due process argument.

      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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