                                                                            FILED
                             NOT FOR PUBLICATION                             JUN 07 2011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 NAPITUPULU,                                No. 08-73607

               Petitioner,                       Agency No. A078-020-259

  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.

       James Napitupulu, 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 withholding of removal.

We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence,


          *
             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).
Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir. 2009). We deny in part and

grant in part the petition for review, and remand.

      Substantial evidence supports the agency’s finding that Napitupulu’s

mistreatment by Muslims, even considered cumulatively, did not rise to the level of

persecution. See Singh v. INS, 134 F.3d 962, 965-69 (9th Cir. 1998) (repeated

stoning and vandalism of petitioner’s home did not compel finding of past

persecution).

      The BIA found that, even assuming Napitupulu had established past

persecution on account of his Christian religion, his presumption of a clear

probability of persecution was rebutted because he reasonably could relocate

within Indonesia. In reaching this conclusion, the BIA did not apply the disfavored

group analysis set forth in Sael v. Ashcroft, 386 F.3d 922, 927-29 (9th Cir. 2004).

Intervening case law holds the disfavored group analysis applies to Christians in

Indonesia. See Tampubolon v. Holder, 610 F.3d 1056, 1062 (9th Cir. 2010).

Because the agency did not have the benefit of our decisions in Wakkary and

Tampubolon, we remand for the BIA to assess Napitupulu’s withholding of

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

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

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


                                          2                                    08-73607
   PETITION FOR REVIEW DENIED in part; GRANTED in part;
REMANDED.




                             3                            08-73607
