                                                                           FILED
                              NOT FOR PUBLICATION                           MAR 07 2011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



AURELIA MUTHYA BOENTORO; et                        No. 09-72724
al.,
                                                   Agency Nos. A099-885-042
               Petitioners,                                    A099-885-043

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

               Respondent.



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

                              Submitted February 15, 2011 **

Before:        CANBY, FERNANDEZ, and M. SMITH, Circuit Judges

       Aurelia Muthya Boentoro and her son, natives and citizens of Indonesia,

petition for review of the Board of Immigration Appeals’ (“BIA”) order dismissing

their appeal from an immigration judge’s decision denying their application for

asylum, withholding of removal, and relief under the Convention Against Torture

          *
             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).
(“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial

evidence factual findings and review de novo legal determinations. 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

Boentoro failed to show that it is more likely than not that she will be tortured if

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

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

harm Boentoro suffered during the motorbike incident, sexual harassment she

experienced, the threats to her property and person, and the discrimination she

suffered, even considered cumulatively, did not constitute past persecution. See

Wakkary, 558 F.3d at 1059-60; Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir.

2003) (unfulfilled threats and incident of physical violence did not compel a

finding of past persecution).

      The record compels the conclusion, however, that Boentoro demonstrated a

sufficiently individualized threat of persecution under a disfavored group analysis

to establish a well-founded fear of future persecution. See Sael v. Ashcroft, 386

F.3d 922, 929 (9th Cir. 2004). Contrary to the BIA’s finding, the record indicates

that Boentoro suffered at least as much individual harm as the petitioner in Sael.


                                                                                 09-72724
Accordingly, we grant the petition as to Boentoro’s asylum and withholding of

removal claims and remand so the Attorney General may exercise his discretion as

to whether to grant asylum, and for the BIA to consider her withholding of removal

claim in light of our conclusions.

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

      PETITION FOR REVIEW DENIED in part; GRANTED in part;

      REMANDED.




                                                                           09-72724
