                                                                           FILED
                             NOT FOR PUBLICATION                            JUN 09 2011

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




                             FOR THE NINTH CIRCUIT



JUKARDI TJHENDRAWAN,                             No. 08-73139

               Petitioner,                       Agency No. A096-361-782

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

               Respondent.



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

                             Submitted May 24, 2011 **

Before:        PREGERSON, THOMAS, and PAEZ, Circuit Judges.

       Jukardi Tjhendrawan, 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 protection under the Convention Against Torture (“CAT”). Our


          *
             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 is governed by 8 U.S.C. § 1252. We review de novo questions of law

and for substantial evidence factual findings. Husyev v. Mukasey, 528 F.3d 1172,

1177 (9th Cir. 2008). We deny in part, grant in part, and dismiss in part the

petition for review, and we remand.

         The record does not compel the conclusion that Tjhendrawan established

changed circumstances excusing his untimely filed asylum application. See 8

C.F.R. § 1208.4(a)(4). Accordingly, Tjhendrawan’s asylum claim fails.

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

Tjhendrawan failed to establish it is more likely than not he would be tortured if

removed to Indonesia. See Wakkary v. Holder, 558 F.3d 1049, 1067-68 (9th Cir.

2009).

         Substantial evidence also supports the agency’s determination that the

incidents of mistreatment Tjhendrawan suffered constituted discrimination or

harassment and did not rise to the level of persecution. See Nagoulko v. INS, 333

F.3d 1012, 1016-18 (9th Cir. 2003) (discrimination and harassment due to

petitioner’s religious beliefs did not compel finding of past persecution); Wakkary,

558 F.3d at 1059-60 (“discriminatory mistreatment” including two incidents of

beating and robbery and being accosted by a hostile mob did not compel finding of

past persecution). However, when the agency declined to apply the disfavored


                                            2                                     08-73139
group analysis to Tjhendrawan’s withholding of removal claim, it did not have the

benefit of our intervening decisions in Wakkary and Tampubolon v. Holder, 610

F.3d 1056 (9th Cir. 2010). Accordingly, we remand for the BIA to assess this

claim under the disfavored group analysis in the first instance. See INS v. Ventura,

537 U.S. 12, 16-18 (2002) (per curiam).

      Finally, we lack jurisdiction to consider Tjhendrawan’s due process claim

because he did not raise this issue to the BIA. See Barron v. Ashcroft, 358 F.3d

674, 678 (9th Cir. 2004) (no jurisdiction over claims not presented below).

      Each party shall bear its own costs for this petition for review.

      PETITION FOR REVIEW DENIED in part; GRANTED in part;

DISMISSED in part; REMANDED.




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