Alex Lamdjani v. Mark Filip

Ninth Circuit

Alex Lamdjani v. Mark Filip

435 F. App'x 681

CourtCourt of Appeals for the Ninth Circuit

DecidedJune 3, 2011

Docket08-72891

StatusUnpublished

This text of 435 F. App'x 681 (Alex Lamdjani v. Mark Filip) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Alex Lamdjani v. Mark Filip, 435 F. App'x 681 (9th Cir. 2011).

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Opinion

MEMORANDUM **

Alex Lamdjani, 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 asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence 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 deny in part and grant in part the petition for review, and we remand.

The record does not compel the conclusion that Lamdjani established he qualified for an exception to the timely-filing requirement. See 8 C.F.R. § 1208.4(a)(4), (5). Accordingly, his asylum claim fails.

Substantial evidence supports the agency’s denial of Lamdjani’s CAT claim because he failed to show it is more likely than not that he will be tortured by or *683 with the consent or acquiescence of the government if returned to Indonesia. See Wakkary, 558 F.3d at 1067-68.

Among other things, Lamdjani presented evidence of three incidents of physical harm, including a beating by four native Indonesians and another instance where native Indonesians attacked him and broke his arm. With respect to past persecution, substantial evidence does not support the agency’s determination that the harms Lamdjani suffered did not rise to the level of persecution. See Korablina v. INS, 158 F.3d 1038, 1044-45 (9th Cir.1998). Further, in analyzing future fear, the agency did not assess Lamdjani’s claim under a disfavored group analysis. Accordingly, and in light of our intervening decisions in Tampubolon v. Holder, 610 F.3d 1056 (9th Cir.2010), and Wakkary v. Holder, 558 F.3d 1049 (9th Cir.2009), we grant the petition for review with respect to Lamdjani’s withholding of removal claim, and remand for further proceedings consistent with this disposition. See INS v. Ventura, 537 U.S. 12, 16-18, 123 S.Ct. 353, 154 L.Ed.2d 272 (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.

**

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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MEMORANDUM **

Alex Lamdjani, 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 asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence 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 deny in part and grant in part the petition for review, and we remand.

The record does not compel the conclusion that Lamdjani established he qualified for an exception to the timely-filing requirement. See 8 C.F.R. § 1208.4(a)(4), (5). Accordingly, his asylum claim fails.

Substantial evidence supports the agency’s denial of Lamdjani’s CAT claim because he failed to show it is more likely than not that he will be tortured by or *683 with the consent or acquiescence of the government if returned to Indonesia. See Wakkary, 558 F.3d at 1067-68.

Among other things, Lamdjani presented evidence of three incidents of physical harm, including a beating by four native Indonesians and another instance where native Indonesians attacked him and broke his arm. With respect to past persecution, substantial evidence does not support the agency’s determination that the harms Lamdjani suffered did not rise to the level of persecution. See Korablina v. INS, 158 F.3d 1038, 1044-45 (9th Cir.1998). Further, in analyzing future fear, the agency did not assess Lamdjani’s claim under a disfavored group analysis. Accordingly, and in light of our intervening decisions in Tampubolon v. Holder, 610 F.3d 1056 (9th Cir.2010), and Wakkary v. Holder, 558 F.3d 1049 (9th Cir.2009), we grant the petition for review with respect to Lamdjani’s withholding of removal claim, and remand for further proceedings consistent with this disposition. See INS v. Ventura, 537 U.S. 12, 16-18, 123 S.Ct. 353, 154 L.Ed.2d 272 (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.

**

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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