                                                                           FILED
                             NOT FOR PUBLICATION                            APR 13 2011

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




                             FOR THE NINTH CIRCUIT



LUCAS BUDIONO, a.k.a. Lu Han Hong,               No. 08-72223
a.k.a. Budiono Lucas,
                                                 Agency No. A075-660-448
               Petitioner,

  v.                                             MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



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

                              Submitted April 5, 2011 **

Before:        B. FLETCHER, CLIFTON, and BEA, Circuit Judges.

       Lucas Budiono, a native and citizen of Indonesia, petitions for review of the

Board of Immigration Appeals’ 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”). We have jurisdiction

          *
             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).
under 8 U.S.C. § 1252. We review de novo questions of law and review 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.

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

Budiono failed to establish it is more likely than not that he will be tortured in

Indonesia by or with the acquiescence of a public official or other individual acting

in an official capacity. See Wakkary, 558 F.3d at 1068.

      Further, the record does not compel the conclusion that Budiono experienced

harms in Indonesia that rise to the level of past persecution. See Hoxha v. Ashcroft,

319 F.3d 1179, 1182 (9th Cir. 2003); Wakkary, 558 F.3d at 1059-60. However, in

analyzing Budiono’s fear of future persecution, the agency did not apply the

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

Cir. 2004). In light of this and our intervening decisions in Tampubolon v. Holder,

610 F.3d 1056 (9th Cir. 2010), and Wakkary v. Holder, 558 F.3d 1049 (9th

Cir. 2009), we remand for the agency to assess Budiono’s asylum and withholding

of removal claims under the disfavored group analysis in the first instance. See

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




                                           2                                     08-72223
   Each party shall bear its own costs for this petition for review.

   PETITION FOR REVIEW DENIED in part; GRANTED in part;

REMANDED.




                                       3                               08-72223
