                                                                            FILED
                              NOT FOR PUBLICATION                            DEC 29 2009

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




                              FOR THE NINTH CIRCUIT



 BOBBY GIROTH,                                    No. 07-70006

               Petitioner,                        Agency No. A096-361-974

   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.

        Bobby Giroth, a native and citizen of Indonesia, petitions for review of the

Board of Immigration Appeals’ order dismissing his appeal from an immigration

judge’s decision denying his application for withholding of removal and protection



          *
             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).

JK/Research
under the Convention Against Torture (“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), and we grant in part and deny in part the petition for

review.

       Substantial evidence supports the agency’s finding that Giroth failed to

establish he suffered past persecution in Indonesia. See id. at 1059-60. In

analyzing Giroth’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). Because intervening case law holds the disfavored group analysis

applies, see Wakkary, 558 F.3d at 1062-65, we remand to the agency for

consideration of whether Giroth is entitled to withholding of removal. See id. at

1067; INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam).

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

Giroth has not established it is more likely than not that he will be tortured if he

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

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

       PETITION FOR REVIEW GRANTED in part; DENIED in part;

REMANDED.




JK/Research                                2                                     07-70006
