                                                                          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                             NOT FOR PUBLICATION                           JUN 29 2011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



CANDRA SANJAYA,                                  No. 08-73434

               Petitioner,                       Agency No. A095-554-834

  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.

       Candra Sanjaya, a native and citizen of Indonesia, petitions for review of the

Board of Immigration Appeals’ order dismissing his appeal from an immigration

judge’s (“IJ”) decision denying his application for asylum, withholding of removal,

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


          *
             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).
jurisdiction under 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),

and we review de novo due process claims, Ibarra-Flores v. Gonzales, 439 F.3d

614, 620 (9th Cir. 2006). We deny in part and grant in part the petition for review,

and we remand.

      We reject Sanjaya’s contention that the IJ’s decision violated his due process

rights. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error and

prejudice to prevail on due process claim).

      Sanjaya does not challenge the agency’s dispositive determination that his

asylum application was untimely. See Martinez-Serrano v. INS, 94 F.3d 1256,

1259-60 (9th Cir. 1996) (issues not addressed in argument portion of brief are

deemed waived).

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

Sanjaya has not established it is more likely than not that he will be tortured if he

returns to Indonesia. See Wakkary, 558 F.3d at 1067-68.

      Substantial evidence also supports the agency’s finding that the harms

experienced by Sanjaya were not sufficiently serious to rise to the level of past

persecution. See Wakkary, 558 F.3d at 1059-60 (being beaten by youths, robbed of

sandals and pocket money, and accosted by a threatening mob did not compel a


                                           2                                     08-73434
past persecution finding). However, the BIA declined to apply the disfavored

group analysis to Sanjaya’s withholding of removal claim. In light of our

intervening decision in Wakkary, 558 F.3d at 1064-67, we remand for the agency

to assess in the first instance whether Sanjaya has demonstrated a clear probability

of future persecution under the disfavored group analysis. 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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