                                                                          FILED
                             NOT FOR PUBLICATION                           JUN 29 2011

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




                             FOR THE NINTH CIRCUIT



DANIEL MALONDA,                                  No. 08-73143

               Petitioner,                       Agency No. A078-442-402

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

               Respondent.



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

                             Submitted June 15, 2011 **

Before:        CANBY, O’SCANNLAIN, and FISHER, Circuit Judges.

       Daniel Malonda, 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”). Our jurisdiction is


          *
             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).
governed by 8 U.S.C. § 1252. We review for substantial evidence the agency’s

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 record does not compel the conclusion that Malonda established

extraordinary circumstances sufficient to excuse his untimely asylum application.

See 8 C.F.R. § 1208.4(a)(5). Accordingly, Malonda’s asylum claim fails.

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

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

Indonesia by or with the acquiescence of the government. See Wakkary, 558 F.3d

at 1068.

      The record does not compel the conclusion that Malonda experienced harms

in Indonesia that rise to the level of past persecution. See Wakkary, 558 F.3d at

1059-60 (being beaten, robbed, and accosted by a threatening mob did not compel

a past persecution finding). However, in analyzing Malonda’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, we remand for the agency to assess Malonda’s withholding of removal




                                           2                                     08-73143
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.

      PETITION FOR REVIEW DENIED in part; GRANTED in part;

REMANDED.




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