Barita Lumban Tobing 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NOT FOR PUBLICATION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
BARITA LUMBAN TOBING,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 08-70039
Agency No. A095-630-004
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 16, 2010**
Before: TASHIMA, BERZON, and CLIFTON, Circuit Judges.
Barita Lumban Tobing, 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 (“IJ”) denying his application for withholding of
removal and protection under the Convention Against Torture (“CAT”). We have
FILED
NOV 24 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 and review de novo legal determinations. Wakkary v. Holder, 558 F.3d
1049, 1056 (9th Cir. 2009). We deny in part and grant in part the petition for
review, and we remand.
The IJ denied Tobing’s asylum claim as time-barred. Tobing does not
challenge this dispositive finding in his opening brief.
Substantial evidence supports the agency’s denial of Tobing’s claim for
CAT relief because he failed to show it is more likely than not he will be tortured if
returned to Indonesia. See Wakkary, 558 F.3d at 1068.
Substantial evidence also supports the IJ’s finding that the incidents Tobing
suffered in school and the problems he had with his business partner did not rise to
the level of persecution. See id. at 1059-60. In addition, the record does not
compel the conclusion that Tobing has established a pattern or practice of
persecution of Christians in Indonesia. See id. at 1060-62. However, in denying
Tobing’s withholding of removal claim, the agency did not apply the disfavored
group analysis. Because the agency did not have the benefit of our intervening
decision in Tampubolon v. Holder, 610 F. 3d 1056, 1062 (9th Cir. 2010), we
remand for the agency to assess Tobing’s withholding of removal claim under the

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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).
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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