                                                                              FILED
                             NOT FOR PUBLICATION                              APR 24 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


FATMA DARYANTI MALIK;                            No. 10-73213
LEONARDO THEODOSIUS TAN,
                                                 Agency Nos.        A097-740-738
              Petitioners,                                          A078-504-415

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

              Respondent.


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

                       Argued and Submitted April 11, 2014
                              Pasadena, California

Before: N.R. SMITH and MURGUIA, Circuit Judges, and MCNAMEE, District
Judge.**

       Petitioners Fatma Daryanti Malik and Leonardo Theodosius Tan petition for

review of the Board of Immigration Appeals (BIA) decision upholding the

immigration judge’s (IJ’s) denial of their applications for asylum, withholding of

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
              The Honorable Stephen M. McNamee, United States District Judge
for the District of Arizona, sitting by designation.
removal, and protection under the Convention Against Torture (CAT).1 We have

jurisdiction under 8 U.S.C. § 1252. We grant in part and deny in part the petition

for review, and we remand for further factfinding by the IJ.

      Because the BIA conducted its own review of the evidence and law, we

review the BIA’s decision and not that of the IJ, except to the extent that the BIA

expressly adopted portions of the IJ’s opinion. Cordoba v. Holder, 726 F.3d 1106,

1113-14 (9th Cir. 2013); Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir. 2006).

We review de novo purely legal questions and mixed questions of law and fact.

Cordoba, 726 F.3d at 1113. We review the BIA’s factual determinations for

substantial evidence. Id.

      1.     Substantial evidence supports the BIA’s determination that, even

assuming Petitioner established that “extraordinary circumstances” gave rise to her

delay in filing her asylum application, she failed to establish that, “given those

circumstances,” she filed the application within a reasonable period of time. See

8 U.S.C. § 1158(a)(2)(D); 8 C.F.R. § 208.4(a)(5). Although immigration

consultant fraud such as that alleged by Petitioner may constitute “extraordinary



      1
              Petitioner Tan is a derivative applicant on Petitioner Malik’s asylum
application, but the two filed separate applications for withholding of removal and
CAT protection. Because both Petitioner Malik’s and Petitioner Tan’s requests for
relief are based on the same claims, we discuss Petitioner Malik’s claims only.

                                           2
circumstances” to excuse a delay, see Viridiana v. Holder, 646 F.3d 1230, 1238

(9th Cir. 2011), Petitioner was nonetheless required to submit her application

“within a reasonable period given those circumstances,” 8 C.F.R. § 208.4(a)(5).

She did not. Indeed, Petitioner’s only stated reason for her delay was that she

needed to “sav[e] up money again [for the] processing of the paperwork”; she did

not, however, present any evidence that she had been diligent in seeking the help of

an attorney, that she knew how much money she needed to save, or that she had

taken any steps to learn how she might begin the asylum application process. In

the absence of such evidence, we cannot conclude that the BIA’s determination

was not “supported by reasonable, substantial, and probative evidence in the record

as a whole.” Al-Ramahi v. Holder, 725 F.3d 1133, 1138 (9th Cir. 2013) (internal

quotation marks omitted).

      2.     Substantial evidence likewise supports the BIA’s determination that

Petitioner is not entitled to CAT protection. Petitioner offered no evidence that she

more likely than not will be tortured should she return to Indonesia. See 8 C.F.R.

§ 1208.16(c)(2) (setting forth that standard).

      3.     We grant in part the petition for review because the BIA violated

8 C.F.R. § 1003.1(d)(3) when it impermissibly engaged in factfinding in the course

of considering Petitioner’s request for withholding of removal. Under


                                          3
§ 1003.1(d)(3)(iv), the BIA is not permitted to “engage in factfinding in the course

of deciding appeals.” “Where the BIA fails to follow its own regulations and

makes factual findings, it commits an error of law, which we have jurisdiction to

correct.” Rodriguez v. Holder, 683 F.3d 1164, 1170 (9th Cir. 2012).

      Because the IJ declined initially to apply the disfavored group analysis of

Sael v. Ashcroft, 386 F.3d 922 (9th Cir. 2004), and Wakkary v. Holder, 558 F.3d

1049 (9th Cir. 2009), to Petitioner’s claim for withholding of removal, the IJ never

made the findings required under that analysis–specifically, findings with respect

to whether Petitioner was a member of a “disfavored group” in Indonesia or

whether Petitioner was at an “individualized risk of being singled out for

persecution,” Sael, 386 F.3d at 925. Although the IJ did make a finding that

Petitioner had not satisfied her burden to establish a fear of future persecution, it

made no finding as to whether Petitioner had satisfied her burden to establish an

“individualized risk of being singled out for persecution” under the disfavored

group analysis, which is, potentially, a lower standard. See Sael, 386 F.3d at 925.

      On appeal, however, the BIA found that Petitioner “ha[d] presented little

evidence that she would face any increased individualized risk as compared to the

general ethnic-Chinese and Christian religion population of Indonesia.” That

finding was not made initially by the IJ, and is precisely the sort of finding that the


                                           4
BIA, in its appellate function, is precluded from making in the first instance under

8 C.F.R. § 1003.1(d)(3)(iv). See Ridore v. Holder, 696 F.3d 907, 915 (9th Cir.

2012) (“[A] finding that a petitioner is likely to be beaten by government officials

based on a finding that the petitioner was severely beaten in the past” is “a finding

of fact.” (quoting Kaplun v. Attorney Gen., 602 F.3d 260, 271 (3d Cir. 2010)). To

the extent that the IJ made relevant findings of fact based on the country conditions

evidence in the record, the BIA did not state those findings as a basis for its

conclusion under the disfavored group analysis.

      Moreover, the BIA did not address Petitioner’s testimony that the police

failed to assist her when it concluded that Petitioner had not shown that the

Indonesian government was unable or unwilling to protect her from harm. See

Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010) (requiring the BIA to

“consider the issues raised, and announce its decision in terms sufficient to enable

a reviewing court to perceive that it has heard and thought and not merely reacted.”

(internal quotation marks omitted)).

      The BIA’s conclusions with respect to Petitioner’s requests for asylum and

CAT protection are supported by substantial evidence in the administrative record.

For that reason, we DENY IN PART the petition review. Because the BIA

exceeded its appellate authority with respect to Petitioner’s request for withholding


                                           5
of removal, we GRANT IN PART the petition for review, and REMAND for the

IJ to make the findings of fact required under the disfavored group analysis in the

first instance.

       Each party shall bear its own costs on appeal.




                                          6
