*1 (9th Lit., DC, 403, Cir.2009). Washington, Respon- gration The BIA was required dent. to defer to the IJ’s determi- nation that Alcaraz-Martinez warranted a 212(c) § grant of relief as a matter of 1003.1(d)(3)(h) § discretion. See 8 C.F.R. (“The may Board review questions of ... novo.”). discretion .. de ALARCÓN, TROTT, PETITION FOR REVIEW DIS- TASHIMA, part; part. MISSED in DENIED in ** Alcaraz-Martinez, Juan Miguel Mexico, petitions
and citizen of of Immigration Appeals’ Board
(“BIA”) affirming (“IJ”) removal order and 212(c) § for a waiver of jurisdiction Our is
inadmissability. gov- § by
erned 1252. We review de NABABAN, Petitioner, process novo claims of due violations immigration proceedings, Sanchez-Cruz INS, 775, Cir.2001), 255 F.3d Jr., Attorney Eric H. HOLDER part part we dismiss in General, Respondent. petition for review.
We lack to review BIA’s discretionary denial Alcaraz-Martinez’s United States of Appeals, Court 212(c) § application for a waiver of inad- 1252(a)(2)(B); missability. 8See U.S.C. Argued and Submitted Nov. 2009. Palma-Rojas v. curiam). Cir.2001) (per Dec. Filed Alearaz-Martinez’s contention that process rights
BIA violated his due
disregarding hardship his evidence of
misapplying the law to the facts of his case not supported does process
not amount colorable due
claim. See Martinez-Rosas v.
Contrary to Alcaraz-Martinez’s conten-
tion, the BIA not engage impermis- fact-finding deciding
sible the course of appeal. Brezilien v. Cf. ** publi- ed 9th Cir. R. 36-3. provid- cation and is not *2 (IJ) withholding asylum, for of application
removal, protection under Con- (CAT). Against Torture We have vention § 1252. We novo and fac- legal review conclusions de findings for substantial evidence. tual Gonzales, v. Ochoa for petition We review. wrong legal BIA did apply or fail to address Naba
standard asylum claim. The acknowl ban’s the IJ’s that Nababan edged a well-founded fear failed demonstrate persecution. supplying After its of future analysis grounds for own to Nababan’s (i.e., race, group), the concluded there was “no reason to disturb” the IJ’s denial Naba Davis, Law Offices of Howard Robert Therefore, asylum. for Davis, Monica, CA, R. Howard Santa the BIA’s reflects that Petitioner. issues raised properly considered the Justice, Department Washing- Lopez claim. See Counsel, ton, DC, Esquire, CAC-District Ashcroft, 366 807 n. 6 Department of the District Office Counsel 2004) (“[T]he have to write [BIA] CA, Angeles, Los Security, (internal of Homeland exegesis on every an contention.” Lefevre, of the District omitted)). Ronald E. Office marks quotation Homeland Securi- Department of Counsel supports Substantial evidence IJ’s Francisco, CA, Respondent. San ty, asylum. BIA’s denial of allege past that he suffered failed to
tion in Indonesia. Nababan
es-
perse-
fear of future
tablish well-founded
cution because even if were member
he did not demon-
group,
of a disfavored
BYBEE,
PREGERSON,
requisite
risk
strate the
individualized
SMITH,
M.
persecution.
Lolong
(9th Cir.2007) (en
1179-81
*
banc).
addition,
similarly-
In
Nababan,
remain in
situated
members who
citizen of
Hakeem v.
petitions
Indonesia unharmed. See
(9th Cir.2001) (“An
Immigration Appeals’s
of the Board of
(BIA)
persecution upon
from
re-
dismissing
appeal
applicant’s
publica-
by 9th Cir. R.
36-3.
provided
tion and is not
weakened,
undercut,
Department’s
turn
when State
2005 Human Rights
similarly-situated family
Country Report
members continue
for Indonesia and the In
Religious
live in the
ternational
Report
inci-
Freedom
*3
dent....”).
Lastly, the record does not
shows that Christians experi
persecution
the
ence
discrimination
compel
conclusion that
dem-
throughout
Indonesia. The BIA
pattern
practice
persecu-
onstrated
or
was inat
Bataks, Christians,
Thus,
tentive to the
in this case.
against ethnic
I
tion
would remand
it to
in
consider
Westernized individuals
Indonesia. See
entire
the
record. Smolniakova
Wakkary
v. Gon
558
1060-
zales,
(9th Cir.2009);
Cir.
Lolong,
see also
2005) (remanding where the BIA affirmed
F.3d at 1180-81.
the Id’s decision
and the
Because
asy-
Nababan did not establish
record).
had
IJ
the
misconstrued
eligibility,
necessarily
lum
it
follows that
Second, the BIA erred when it approved
not satisfy
stringent
he did
the more
stan-
IJ
presence
the
the
considering
of Naba
for withholding
dard
of removal. See Ze-
family
members
Indonesia without
1182,1190
hatye
harm. The BIA’s determination that the
Cir.2006). Substantial evidence also sup-
made no
in considering
IJ
error
the pres
the
ports
denial of CAT relief because
family
ence of Nababan’s
members in In
Nababan did not demonstrate that
it is
Thus,
is a legal
donesia
conclusion.
this
likely
more
than not
that
would be
court reviews the BIA’s determination de
tortured
returned to Indonesia. See
novo. Socop-Gonzalez v.
Wakkary,
holding of agree removal. I that also the members, family Nababan’s extended in- addressed Nababan’s claim. -wife, cluding his father’s former his half- My dissent is based on four errors brother, half-sister, grandmother, and sev- committed the BIA in case. uncles, eral aunts are similarly
First, situated, I take with They issue the BIA’s conclu- share the key do not char- sion that Nababan per- could avoid future acteristics subject Nababan asserts will secution relocating persecution within Indonesia. him on account of his mem- not, majority bership as the in a group, includ- contends, supported ing substantial years spent evi- his formative in the U.S. Instead, record, including such, dence. the and his American education. they perceive those that Christians and finding the IJ erred extended I would remand that Nababan’s associated with West. considered More- not been harmed. for the whether Nababan had BIA to consider members family members over, if Nababan’s establishing met that it his burden of situated,” “similarly were considered that he likely is more than not would be to consider the BIA failed tortured. uncle suffered on account tion Nababan’s IJ, before Sadly, lawyer i.e., him to kill Christianity, threats Linder, Gary qualify declined to *4 worship at to his Christian came back he voluntary departure, relief which the church. willing grant. IJ indicated she was Third, BIA erred when it considered such, this relief and IJ denied Naba- group social as “[a]ll Nababan’s his ban will unable to visit father and be na- appear to be American people who step-mother here in the United States for that his so- Nababan asserted tionality.” years. Immigra- at least the next five shaped by specific cial was group 212(a)(9)(A)(i). Nationality tion and Act ethnicity, factors such at which young U.S., and his U.S. education. dicta group
social foreclosed Mukasey,
Toufighi
(9th Cir.2007) (stating dicta that “we pro-Western recognized
have never against protected group
social ”). remand
tion .... I would consider Nababan’s left Indonesian Christians who
group of age, young spent their Indonesia at LANCE, Plaintiff-Appellant, John F. U.S., in the received education, and are Westernized’ al., MAHONEY; Mike et Defendants- perceived pro-American. be would Appellees. Finally, the BIA erred when it affirmed of Nababan’s for re- IJ’s denial Against lief Torture. under the Convention Appeals, United States Court did not dis- specifically The BIA’s decision claim, Nababan’s CAT but affirmed cuss IJ’s denial of relief The CAT. 17, 2009.* Submitted Nov. concluded that Nababan had not shown Filed Dec. that he would be tortured the future or treatment would that such be acquiescence
consent or the Indonesian
government. Substantial in the evidence government’s the Indonesian
record shows groups target
ties to Muslim radical who 34(a)(2). unanimously R.App. panel finds case suitable P. argument. without oral See Fed.