Herry Dastanta Tarigan; Debora Simamora; Samuel Altasyet Simamora 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). Accordingly, petitioners’
request for oral argument is denied.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HERRY DASTANTA TARIGAN;
DEBORA SIMAMORA; SAMUEL
ALTASYET SIMAMORA,
Petitioners,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 08-71617
Agency Nos. A095-630-043
A095-355-820
A095-629-788
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 10, 2012**
Before: HUG, FARRIS, and LEAVY, Circuit Judges.
Herry Dastanta Tarigan (“Herry”), Deborah Simamora (“Deborah”), and
Samuel Altasyet Simamora (“Samuel”), natives and citizens of Indonesia, petition
FILED
MAR 21 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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08-71617 2
for review the Board of Immigration Appeals’ (“BIA”) order dismissing their
appeal from an immigration judge’s (“IJ”) decision denying their applications for
asylum, withholding of removal, and relief under the Convention Against Torture
(“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for
substantial evidence factual findings and review de novo legal determinations.
Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir. 2009). We deny in part, dismiss
in part, and grant in part the petition for review, and we remand.
Herry and Samuel do not challenge the agency’s dispositive determination
that their asylum applications are time-barred. See Martinez-Serrano v. INS, 94
F.3d 1256, 1259-60 (9th Cir. 1996) (issues not specifically raised and argued in a
party’s opening brief are waived). Accordingly, review of their asylum claims is
denied. We dismiss Herry’s claim for humanitarian asylum because he failed to
exhaust this claim before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th
Cir. 2004).
In assessing petitioners’ claims, the agency did not have the benefit of our
opinions in Wakkary or Tampubolon v. Holder, 610 F.3d 1056 (9th Cir. 2010).
Accordingly, we grant the petition with respect to Deborah’s asylum and
withholding of removal claims and Herry and Samuel’s withholding of removal
claims. We remand for the agency to analyze these claims under a disfavored

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08-71617 3
group analysis in the first instance. See INS v. Ventura, 537 U.S. 12, 16-18 (2002)
(per curiam); see also Wakkary, 558 F.3d at 1062-65 (disfavored group analysis
applies to withholding of removal).
Substantial evidence supports the agency’s denial of CAT relief because
petitioners failed to demonstrate it is more likely than not they will be tortured if
returned to Indonesia. See Wakkary, 558 F.3d at 1067-68.
Each party shall bear their own costs on appeal.
PETITION FOR REVIEW DENIED in part; DISMISSED in part;
GRANTED in part; REMANDED.

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