                                                                            FILED
                              NOT FOR PUBLICATION                            NOV 22 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                              FOR THE NINTH CIRCUIT



JOSEF CARLO MARGIO RENALDO,                       No. 07-73950

               Petitioner,                        Agency No. A096-360-088

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

               Respondent.



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

                             Submitted November 16, 2010 **

Before:        TASHIMA, BERZON, and CLIFTON, Circuit Judges.

       Josef Carlo Margio Renaldo, 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


          *
             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, 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.

      The record does not compel the conclusion that changed circumstances

excused the untimely filing of Renaldo’s asylum application. See 8 C.F.R. §

1208.4(a)(4); Ramadan v. Gonzales, 479 F.3d 646, 656-58 (9th Cir. 2007) (per

curiam). We are, however, unable fully to review Renaldo’s claim of

extraordinary circumstances because we cannot ascertain from the record whether

the BIA found no extraordinary circumstances based a finding that Renaldo failed

to establish extraordinary circumstances or based on a finding that he failed to file

his asylum application within a reasonable time after the occurrence of an

extraordinary circumstance. See Ghaly v. INS, 58 F.3d 1425, 1430 (9th Cir. 1999)

(noting that the “Board [must] provide a comprehensible reason for its decision

sufficient for us to conduct our review and to be assured that the petitioner’s case

received individualized attention”). We therefore remand Renaldo’s asylum claim

to the BIA to determine whether he established extraordinary circumstances, and,

if so, whether his delay in fling his asylum application was reasonable in light of

the presumption that a six-month delay is reasonable. See Wakkary v. Holder, 558

F.3d 1049, 1057-59 (9th Cir. 2009).


                                           2                                    07-73950
      Substantial evidence supports the BIA’s finding that Renaldo did not suffer

past persecution because the incidents he suffered in Indonesia, including threats,

discrimination, the attack on his house, and minor physical harm, even considered

cumulatively, do not rise to the level of persecution. See Hoxha v. Ashcroft, 319

F.3d 1179, 1182 (9th Cir. 2003).

      In assessing Renaldo’s future fear of persecution, the IJ declined to apply the

disfavored group analysis and distinguished Sael v. Ashcroft, 386 F.3d 922 (9th

Cir. 2004), because Renaldo is not Chinese and Sael did not involve a claim for

withholding of removal. The BIA agreed with the IJ’s findings. In light of our

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

558 F.3d at 1064-65, we remand for the agency to consider in the first instance

whether Renaldo is entitled to withholding of removal under the disfavored group

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

      Finally, substantial evidence supports the BIA’s denial of Renaldo’s CAT

claim because Renaldo failed to demonstrate a likelihood of torture upon return to

Indonesia. See Wakkary, 558 F.3d at 1067-68. Renaldo’s contention the IJ made a

factual error when considering his CAT claim is not supported by the record.

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




                                          3                                    07-73950
   PETITION FOR REVIEW DENIED in part; GRANTED in part;

REMANDED.




                            4                             07-73950
