                                                                           FILED
                              NOT FOR PUBLICATION                           JAN 07 2010

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




                              FOR THE NINTH CIRCUIT



YOEL NICSON SIAHAAN,                             No. 07-71245

               Petitioner,                       Agency No. A095-630-231

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

               Respondent.



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

                                                           **
                             Submitted December 15, 2009


Before:        GOODWIN, WALLACE, and FISHER, Circuit Judges.

       Yoel Nicson Siahaan, a native and citizen of Indonesia, petitions for review

of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from

the immigration judge’s (“IJ”) decision denying his application for asylum and

withholding of removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We

          *
             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).
review for substantial evidence factual findings. See Wakkary v. Holder, 558 F.3d

1049, 1056 (9th Cir. 2009). We grant in part and deny in part the petition for

review and remand.

      Siahaan contends he established changed circumstances excusing his

untimely asylum application based on the United States’ invasion of Iraq, which

Siahaan claims increased Muslim violence against Christians in Indonesia, and

based on his new position as a church deacon. With respect to the invasion of Iraq

contention, the record does not compel the conclusion that Siahaan established

changed circumstances excusing his untimely 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). With respect to his church deacon contention, however, we are left with

no specific direction as to the applicability of 8 U.S.C. § 1158(a)(2)(D) and 8

C.F.R. § 1208.4. The BIA did not address this argument. Therefore, we remand

for the BIA to consider this issue and determine the merits initially. See Sagaydak

v. Gonzales, 405 F.3d 1035, 1040–41 (9th Cir. 2005) (BIA is not free to “ignore

arguments raised by a petitioner”).

      Substantial evidence supports the IJ’s determination that Siahaan failed to

establish a pattern or practice of persecution against Christians in Indonesia

because he did not establish “the government was unable or unwilling to control


                                           2
the groups responsible for the violence.” Lolong v. Gonzales, 484 F.3d 1173,

1180–81 (9th Cir. 2007) (en banc); see also Wakkary, 558 F.3d at 1061–62.

      In analyzing Siahaan’s future fear, the agency declined to apply the

disfavored group analysis set forth in Sael v. Ashcroft, 386 F.3d 922, 927 (9th Cir.

2004), to Siahaan’s withholding of removal claim. Intervening case law holds the

disfavored group analysis does apply. See Wakkary, 558 F.3d at 1062–65. In

addition, the BIA should address Siahaan’s argument that he would suffer future

persecution as a “Westerner” or person associated with America. See Sagaydak,

405 F.3d at 1040–41.

      Therefore, we grant the petition in part and remand Siahaan’s asylum and

withholding of removal claims for further proceedings consistent with this

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

      The government shall bear the costs of this petition for review.

      PETITION FOR REVIEW GRANTED in part; DENIED in part;

      REMANDED.




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