                                                                           FILED
                             NOT FOR PUBLICATION                            JUN 01 2010

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




                             FOR THE NINTH CIRCUIT



EDY SUMITRA RUSLI,                               No. 06-72256

               Petitioner,                       Agency No. A095-575-772

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

               Respondent.



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

                             Submitted May 25, 2010 **

Before:        CANBY, THOMAS, and W. FLETCHER, Circuit Judges.

       Edy Sumitra Rusli, a native and citizen of Indonesia, petitions for review of

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

immigration judge’s decision denying his application for asylum, withholding of

removal, and relief under the Convention Against Torture (“CAT”). We have


          *
             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).
jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence, INS v.

Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992), and deny in part and grant in part the

petition for review.

         The record does not compel the conclusion that Rusli’s difficulties in finding

an attorney established extraordinary circumstances excusing his untimely filed

asylum application. See 8 C.F.R. §§ 1208.4(a)(5); Husyev v. Mukasey, 528 F.3d

1172, 1181-82 (9th Cir. 2008). Accordingly, Rusli’s asylum claim is denied.

         Substantial evidence also supports the agency’s finding that the incidents in

Rusli’s childhood where he was ridiculed, robbed, and struck by a stone

constituted harassment rather than persecution, see Hoxha v. Ashcroft, 319 F.3d

1179, 1182 (9th Cir. 2003) (holding that unfulfilled threats by citizens based on

ethnicity constitute harassment and not persecution), and that his experiences

during the May 1998 riots and encounter on his motorcycle in June 2000 also did

not amount to persecution, see Nagoulko v. INS, 333 F.3d 1012, 1016-18 (9th Cir.

2003).

         In analyzing Rusli’s withholding of removal claim, the agency declined to

apply the disfavored group analysis set forth in Sael v. Ashcroft, 386 F.3d 922,

927-29 (9th Cir. 2004). Intervening case law holds the disfavored group analysis

applies to withholding of removal. See Wakkary v. Holder, 558 F.3d 1049, 1062-


                                            2                                    06-72256
65 (9th Cir. 2009). Accordingly, we remand to the BIA to consider whether Rusli

is entitled to withholding of removal under Sael and Wakkary. See INS v. Ventura,

537 U.S. 12, 16-18 (2002) (per curiam). In addition, the BIA should consider

Rusli’s pattern or practice of persecution claim. See Sagaydak v. Gonzales, 405

F.3d 1035, 1040 (9th Cir. 2005) (“the BIA [is] not free to ignore arguments raised

by a petitioner.”).

       Substantial evidence supports the agency’s denial of CAT relief because

Rusli failed to establish it is more likely than not he will be tortured in Indonesia.

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

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

       PETITION FOR REVIEW DENIED in part; GRANTED in part;

REMANDED.




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