                                                                           FILED
                             NOT FOR PUBLICATION                            MAR 01 2011

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




                              FOR THE NINTH CIRCUIT



JAMES EDUARD DENDENG,                             No. 08-70522

               Petitioner,                        Agency No. A096-360-092

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

               Respondent.



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

                             Submitted February 15, 2011 **

Before:        CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.

       James Eduard Dendeng, 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 (“IJ”) decision denying his claims for asylum,

withholding of removal, and protection under the Convention Against Torture


          *
             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).
(“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo

questions of law and for substantial evidence factual findings. 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 agency denied Dendeng’s asylum claim based on its finding that

changed circumstances did not excuse his late-filed asylum application. In light of

our intervening decision in Fakhry v. Mukasey, 524 F.3d 1057 (9th Cir. 2008),

addressing the appropriate factors involved in assessing changed circumstances, we

grant the petition for review with respect to Dendeng’s asylum claim and remand

for further proceedings consistent with this disposition. See INS v. Ventura, 537

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

      We lack jurisdiction to review Dendeng’s contentions that there is a pattern

or practice of persecution against Christians in Indonesia and that people with ties

to the U.S. constitute a disfavored group because he failed to raise these issues to

the BIA. See Barron v. Ashcroft, 358 F.3rd 674, 678 (9th Cir. 2004) (no

jurisdiction over claims not presented below).

      Substantial evidence supports the agency’s conclusion that the beating

Dendeng suffered and the threats he received for preaching the Gospel did not rise

to the level of persecution. See Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir.


                                           2                                    08-70522
2003) (beating and repeated threats of harm or death were not “so severe as to

compel a finding of past persecution”). However, substantial evidence does not

support the agency’s finding that Dendeng’s fear of future harm is undercut due to

the lack of harm to Dendeng’s family in Indonesia because the record shows his

family members are not similarly situated. See id. at 1184. In addition, the agency

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 Dendeng’s withholding of removal claim under the disfavored group

analysis in the first instance. See Ventura, 537 U.S. at 16-18.

      Dendeng does not raise any challenge to the agency’s denial of CAT relief.

See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996) (issues not

raised and argued in a party’s opening brief are waived).

      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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