                              NOT FOR PUBLICATION

                      UNITED STATES COURT OF APPEALS                        FILED
                              FOR THE NINTH CIRCUIT                          DEC 23 2009

                                                                         MOLLY C. DWYER, CLERK
                                                                          U .S. C O U R T OF APPE ALS

 TOTO SUBAGYO,                                    No. 07-70464

               Petitioner,                        Agency No. A096-347-835

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

               Respondent.



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

                             Submitted December 15, 2009 **

Before:        GOODWIN, WALLACE, and FISHER, Circuit Judges.

        Toto Subagyo, 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



          *
             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).

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and relief under the Convention Against Torture (“CAT”). We have jurisdiction

under 8 U.S.C. § 1252. We review for substantial evidence factual findings. See

Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006). We grant in part and

deny in part the petition for review.

       The agency’s finding that the harm Subagyo suffered did not constitute past

persecution is supported by substantial evidence. See Gu v. Gonzales, 454 F.3d

1014, 1019-21 (9th Cir. 2006); Zehatye, 453 F.3d at 1186 (government seizure of a

business, absent a threat to life or freedom, does not rise to the level of

persecution). However, in analyzing Subagyo’s fear of future persecution under

the disfavored group analysis, the BIA appears to have erroneously required a

showing of past persecution in order to show an individualized risk. See Sael v.

Ashcroft, 386 F.3d 922, 927, 929 (9th Cir. 2004); Hoxha v. Ashcroft, 319 F.3d

1179, 1183-84 (9th Cir. 2003) (threats and violence that do not amount to past

persecution may still demonstrate individualized risk); see also Wakkary v. Holder,

558 F.3d 1049, 1066 (9th Cir. 2009). Accordingly, we remand to the BIA for

proper consideration of his withholding of removal claim under the disfavored

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




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

Subagyo failed to establish that it is more likely than not that he will be tortured.

Zheng v. Ashcroft, 332 F.3d 1186, 1188 (9th Cir. 2003).

       The parties shall bear their own costs.

       PETITION FOR REVIEW GRANTED in part and REMANDED;

DENIED in part.




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