                                                                            FILED
                             NOT FOR PUBLICATION                             JUN 04 2010

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




                             FOR THE NINTH CIRCUIT



HARIANTO HARIANTO,                                No. 06-71968

               Petitioner,                        Agency No. A096-364-614

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

               Respondent.



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

                             Submitted May 25, 2010 **

Before:        CANBY, THOMAS, and W. FLETCHER, Circuit Judges.

       Harianto Harianto, a native and citizen of Indonesia, petitions pro se 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


          *
             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”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial

evidence. Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir. 2009). We grant in

part and deny in part the petition for review, and we remand.

      The record does not compel the conclusion that changed or extraordinary

circumstances excused Harianto’s untimely filed asylum application. See 8

C.F.R. § 1208.4(a)(4), (5); Ramadan v. Gonzales, 479 F.3d 646, 656-58 (9th Cir.

2007) (per curiam). Accordingly, Harianto’s asylum claim fails.

      Substantial evidence supports the agency’s determination that Harianto’s

experiences of harassment, discrimination, and physical attacks did not rise to the

level of persecution. See Wakkary, 558 F.3d at 1059-60. However, in his brief to

the BIA, Harianto argued he had a fear of future persecution on account of his

Chinese ethnicity and Christian religion. The agency did not consider Harianto’s

application for withholding of removal under the disfavored group analysis. In

light of our decision in Wakkary, we remand for the BIA to assess Harianto’s

withholding of removal claim under the disfavored group analysis in the first

instance. Id. at 1067; see also Tampubolon v. Holder, 598 F.3d 521, 526-27 (9th

Cir. 2010).




                                          2                                     06-71968
      Substantial evidence supports the agency’s denial of CAT relief because

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

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

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

      PETITION GRANTED in part; DENIED in part; and REMANDED.




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