Hasudungan Napitupulu v. ERIC H. HOLDER, Jr., Attorney General

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HASUDUNGAN NAPITUPULU,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 07-74120
Agency No. A096-496-849
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 19, 2010**
Before: B. FLETCHER, REINHARDT, and WARDLAW, Circuit Judges.
Hasudungan Napitupulu, 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 withholding of
removal and protection under the Convention Against Torture (“CAT”). We have
FILED
JUL 29 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence factual
findings. Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir. 2009). We grant the
petition for review in part, deny in part, and remand.
The record does not compel the conclusion that the beating Napitupulu
suffered from his co-workers or the incidence in which a co-worker put
cockroaches in his food, even considered cumulatively, constitute past persecution.
See Prasad v. INS, 47 F.3d 336, 339-40 (9th Cir. 1995) (minor abuse of Indo-Fijian
during 4-6 hour detention did not compel finding of past persecution).
Substantial evidence supports the agency’s denial of CAT relief because
Napitupulu failed to show it is more likely than not that he would be tortured if
removed to Indonesia. See Wakkary, 558 F.3d at 1067-68.
In analyzing Napitupulu’s withholding of removal claim, however, it is
unclear whether the agency applied the disfavored group analysis set forth in Sael
v. Ashcroft, 386 F.3d 922 (9th Cir. 2004). Intervening case law holds the
disfavored group analysis applies to withholding of removal. See Wakkary, 558
F.3d at 1062-65; see also Tampubolon v. Holder, No. 06-70811, 2010 WL
2541610, *5 (9th Cir. June 25, 2010) (“[A]ny reasonable factfinder would be
compelled to conclude on this record that Christian Indonesians are a disfavored
group.”). Accordingly, we remand to the agency to consider in the first instance

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whether Napitupulu is entitled to withholding of removal under the disfavored
group analysis.
Each party shall bear their own costs on appeal.
PETITION FOR REVIEW GRANTED in part; DENIED in part;
REMANDED.

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