Nanser Silaban 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NOT FOR PUBLICATION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
NANSER SILABAN,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 07-74925
Agency No. A095-635-760
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 13, 2010**
Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.
Nanser Silaban, 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.
We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence
FILED
SEP 28 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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the agency’s factual findings, and we review de novo the agency’s legal
determinations. Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir. 2009). We
grant the petition for review and remand.
Substantial evidence supports the BIA’s determination that Silaban did not
suffer past persecution because the incidents he suffered in Indonesia, including
threats, discrimination, and minor physical harm, did not rise to the level of
persecution. See Hoxha v. Ashcroft, 319 F.3d 1179, 1181-82 (9th Cir. 2003).
The BIA concluded that Silaban could not demonstrate a clear probability of
future persecution in part because his remaining family members continued to
practice their Christian religion without difficulty. This finding is not supported by
substantial evidence, because as a religious leader who received individualized
threats, Silaban was not similarly situated to his remaining family members. See
Lim v. INS, 224 F.3d 929, 935 (9th Cir. 2000). The BIA also concluded that as an
Indonesian Christian, Silaban was not a member of a disfavored group. In light of
our recent intervening decision in Tampubolon v. Holder, 610 F.3d 1056 (9th Cir.
2010), we remand for the BIA to assess Silaban’s withholding of removal claim
under the disfavored group analysis in the first instance. See Wakkary, 558 F.3d at
1067, see also INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam).
PETITION FOR REVIEW GRANTED; REMANDED.

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