                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                                DEC 07 2009

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

RICKY BELFAST NABABAN,                           No. 08-71063

             Petitioner,                         Agency No. A078-020-278

  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 November 5, 2009
                              Pasadena, California

Before: PREGERSON, BYBEE, and M. SMITH, Circuit Judges.

       Ricky Belfast Nababan, a native and citizen of Indonesia, petitions for

review of the Board of Immigration Appeals’s (BIA) 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 jurisdiction under 8 U.S.C. § 1252. We review legal conclusions


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
de novo and factual findings for substantial evidence. Ochoa v. Gonzales, 406

F.3d 1166, 1169 (9th Cir. 2005). We deny the petition for review.

      The BIA did not apply the wrong legal standard or fail to properly address

Nababan’s asylum claim. The BIA acknowledged the IJ’s conclusion that

Nababan failed to demonstrate a well-founded fear of future persecution. After

supplying its own analysis as to Nababan’s grounds for asylum (i.e., race, religion,

and social group), the BIA concluded there was “no reason to disturb” the IJ’s

denial of Nababan’s application for asylum. Therefore, the BIA’s opinion reflects

that the BIA properly considered the issues raised by Nababan’s asylum claim. See

Lopez v. Ashcroft, 366 F.3d 799, 807 n.6 (9th Cir. 2004) (“[T]he [BIA] does not

have to write an exegesis on every contention.” (internal quotation marks

omitted)).

      Substantial evidence supports the IJ’s and BIA’s denial of asylum. Nababan

did not allege that he suffered past persecution in Indonesia. Nababan failed to

establish a well-founded fear of future persecution because even if he were a

member of a disfavored group, he did not demonstrate the requisite individualized

risk of persecution. See Lolong v. Gonzales, 484 F.3d 1173, 1179-81 (9th Cir.

2007) (en banc). In addition, Nababan has similarly-situated family members who

remain in Indonesia unharmed. See Hakeem v. INS, 273 F.3d 812, 816-17 (9th Cir.

2001) (“An applicant’s claim of persecution upon return is weakened, even
undercut, when similarly-situated family members continue to live in the country

without incident . . . .”). Lastly, the record does not compel the conclusion that

Nababan demonstrated a pattern or practice of persecution against ethnic Bataks,

Christians, or Westernized individuals in Indonesia. See Wakkary v. Holder, 558

F.3d 1049, 1060-62 (9th Cir. 2009); see also Lolong, 484 F.3d at 1180-81.

      Because Nababan did not establish asylum eligibility, it necessarily follows

that he did not satisfy the more stringent standard for withholding of removal. See

Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006). Substantial evidence

also supports the denial of CAT relief because Nababan did not demonstrate that it

is more likely than not that he would be tortured if returned to Indonesia. See

Wakkary, 558 F.3d at 1067-68.

      PETITION FOR REVIEW DENIED.
                                                                                FILED
Pregerson, J., Dissenting. Nababan v. Holder, No. 08-71063                       DEC 07 2009

                                                                             MOLLY C. DWYER, CLERK
I dissent. Nababan came to the United States at the age of fourteen. After spending
                                                                            U.S. COURT OF APPEALS



his formative years in the U.S. and receiving a U.S. education, he is now being

returned to a country where he will face hostility and persecution based on his

westernization and religion. Thus, I cannot agree with this decision.

      I agree with the majority that the BIA applied the correct legal standard for

withholding of removal. I also agree that the BIA addressed Nababan’s asylum

claim. My dissent is based on four other errors committed by the BIA in this case.

      First, I take issue with the BIA’s conclusion that Nababan could avoid future

persecution by relocating within Indonesia. This conclusion is not, as the majority

contends, supported by substantial evidence. Instead, the record, including the

State Department’s 2005 Human Rights Country Report for Indonesia and the

International Religious Freedom Report for Indonesia, shows that Christians

experience discrimination and persecution throughout Indonesia. The BIA was

inattentive to the record in this case. Thus, I would remand to the BIA for it to

consider the entire record. Smolniakova v. Gonzales, 422 F.3d 1037, 1045-46 (9th

Cir. 2005) (remanding where the BIA affirmed the IJ’s decision without opinion

and the IJ had misconstrued the record).

      Second, the BIA erred when it approved the IJ considering the presence of

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Nababan’s family members in Indonesia without harm. The BIA’s determination

that the IJ made no error in considering the presence of Nababan’s family members

in Indonesia is a legal conclusion. Thus, this court reviews the BIA’s

determination de novo. Socop-Gonzalez v. INS, 272 F.3d 1176, 1187 (9th Cir.

2001).

         The continued presence of family members in an asylum applicant’s country

of origin does not necessarily rebut an applicant’s well-founded fear of

persecution, unless there is evidence that those family members were similarly

situated or subject to similar risk. See, e.g., Kumar v. Gonzales, 444 F.3d 1043,

1055 (9th Cir. 2006) (reversing the BIA’s denial of asylum in part because the BIA

had considered the continued safety of family members who were not similarly

situated to the petitioner).

         Nababan’s extended family members, including his father’s former wife, his

half-brother, half-sister, grandmother, and several aunts and uncles, are not

similarly situated, They do not share the key characteristics Nababan asserts will

subject him to persecution on account of his membership in a particular social

group, including his formative years spent in the U.S. and his American education.

As such, the BIA erred in finding that the IJ properly considered that Nababan’s

extended family members had not been harmed. Moreover, even if Nababan’s

                                          -2-
family members were considered “similarly situated,” the IJ and BIA failed to

consider the persecution Nababan’s uncle suffered on account of his Christianity,

i.e., threats to kill him if he came back to worship at his Christian church.

      Third, the BIA erred when it considered Nababan’s particular social group

as “[a]ll people who appear to be of American nationality.” Nababan asserted that

his social group was shaped by other specific factors such as his religion, his

ethnicity, the young age at which he came to the U.S., and his U.S. education.

Nababan’s social group is not foreclosed by dicta in Toufighi v. Mukasey, 510

F.3d 1059, 1067 (9th Cir. 2007) (stating in dicta that “we have never recognized

pro-Western as a social group protected against persecution. . . .”). I would

remand for the BIA to properly consider Nababan’s social group of Indonesian

Christians who left Indonesia at a young age, spent their formative years in the

U.S., received a U.S. education, and are ‘Westernized’ or would be perceived to be

pro-American.

      Finally, the BIA erred when it affirmed the IJ’s denial of Nababan’s claim

for relief under the Convention Against Torture. The BIA’s decision did not

specifically discuss Nababan’s CAT claim, but affirmed the IJ’s denial of relief

under CAT. The IJ concluded that Nababan had not shown that he would be

tortured in the future or that such treatment would be with the consent or

                                          -3-
acquiescence of the Indonesian government. Substantial evidence in the record

shows the Indonesian government’s ties to Muslim radical groups who target

Christians and those they perceive to be associated with the West. I would remand

for the BIA to consider whether Nababan has met his burden of establishing that it

is more likely than not that he would be tortured.

      Sadly, Nababan’s lawyer before the IJ, Gary Linder, declined to qualify

Nababan for voluntary departure, relief which the IJ indicated she was willing to

grant. As such, the IJ denied this relief and Nababan will be unable to visit his

father and step-mother here in the United States for at least the next five years. See

Immigration and Nationality Act § 212(a)(9)(A)(i).




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