                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAY 07 2014

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

ERNA SARI DEWI,                                  No. 10-70101

              Petitioner,                        Agency No. A099-739-944

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

              Respondent.


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

                     Argued and Submitted February 13, 2014
                              Pasadena, California

Before: PAEZ and NGUYEN, Circuit Judges, and MOTZ, District Judge.**


       Erna Sari Dewi (“Dewi”), a native and citizen of Indonesia, petitions for

review of a decision of the Board of Immigration Appeals (“BIA”) affirming the

denial of her application for asylum, withholding of removal, and protection under


       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **    The Honorable J. Frederick Motz, Senior District Judge for the
U.S. District Court for the District of Maryland, sitting by designation.
the Convention Against Torture (“CAT”). Dewi fears that if she were to return to

Indonesia, she would be persecuted and tortured on account of her Christian

religion and Chinese ethnicity. The immigration judge (“IJ”) found Dewi credible

but concluded that Dewi had not established past persecution or a well-founded

fear of future persecution, nor that she would be tortured by or with the

acquiescence of the government.

      We review the factual findings of the BIA for substantial evidence. INS v.

Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992). To the extent that the BIA adopts

the IJ’s findings, we review those for substantial evidence as well. Lopez-Cardona

v. Holder, 662 F.3d 1110, 1111 (9th Cir. 2011). We grant Dewi’s petition for

review in part and remand to the BIA for further consideration in light of our

decision in Tampubolon v. Holder, 610 F.3d 1056 (9th Cir. 2010).

      Dewi claims that she faced past persecution in Indonesia on account of her

membership in two disfavored groups, Christians and ethnic Chinese in Indonesia.

She also alleges that she has a well-founded fear of future persecution on account

of these grounds. Substantial evidence supports the BIA’s determination that Dewi

did not suffer past persecution while living in Indonesia, as the incidents she

experienced, including harassment, taunting, and assault, do not rise to the level of




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persecution. See Li v. Ashcroft, 356 F.3d 1153, 1158 (9th Cir. 2004)

(characterizing persecution as “an extreme concept”).

      However, when considering Dewi’s claim of a well-founded fear of future

persecution, the BIA did not have the benefit of our decision in Tampubolon,

which held that “Christian Indonesians” were a disfavored group. 610 F.3d at

1062. Accordingly, the BIA conducted a disfavored group analysis only as it

related to Dewi’s status as an ethnic Chinese, a previously recognized disfavored

group. See Sael v. Ashcroft, 386 F.3d 922, 927 (9th Cir. 2004). Because the BIA

decided Dewi’s appeal before we issued our decision in Tampubolon, we grant the

petition for review with respect to Dewi’s asylum and withholding claims and

remand for the BIA to conduct a disfavored group analysis in light of Dewi’s status

as a member of two disfavored groups. See 610 F.3d at 1062 (“[W]e must remand

to the BIA for it to determine whether the combination of disfavored group

evidence and evidence of individualized risk is sufficient to establish a clear

probability that petitioners will be persecuted if removed to Indonesia.”).

      As Dewi presented no evidence that she would be tortured if removed to

Indonesia, she failed to establish eligibility for CAT relief. We therefore deny the

petition for review with respect to Dewi’s CAT claim.

      The parties shall bear their own costs on appeal.


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PETITION GRANTED in part, DENIED in part, and REMANDED.




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