Erna Sari Dewi v. ERIC H. HOLDER, Jr., Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERNA SARI DEWI,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 10-70101
Agency No. A099-739-944
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 13, 2014
Pasadena, California
Before: PAEZ and NGUYEN, Circuit Judges, and MOTZ, District Judge. **
Erna Sari Dewi (“Dewi”), a native and citizen of Indonesia, petitions for
review of a decision of the Board of Immigration Appeals (“BIA”) affirming the
denial of her application for asylum, withholding of removal, and protection under
FILED
MAY 07 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable J. Frederick Motz, Senior District Judge for the
U.S. District Court for the District of Maryland, sitting by designation.

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the Convention Against Torture (“CAT”). Dewi fears that if she were to return to
Indonesia, she would be persecuted and tortured on account of her Christian
religion and Chinese ethnicity. The immigration judge (“IJ”) found Dewi credible
but concluded that Dewi had not established past persecution or a well-founded
fear of future persecution, nor that she would be tortured by or with the
acquiescence of the government.
We review the factual findings of the BIA for substantial evidence. INS v.
Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992). To the extent that the BIA adopts
the IJ’s findings, we review those for substantial evidence as well. Lopez-Cardona
v. Holder, 662 F.3d 1110, 1111 (9th Cir. 2011). We grant Dewi’s petition for
review in part and remand to the BIA for further consideration in light of our
decision in Tampubolon v. Holder, 610 F.3d 1056 (9th Cir. 2010).
Dewi claims that she faced past persecution in Indonesia on account of her
membership in two disfavored groups, Christians and ethnic Chinese in Indonesia.
She also alleges that she has a well-founded fear of future persecution on account
of these grounds. Substantial evidence supports the BIA’s determination that Dewi
did not suffer past persecution while living in Indonesia, as the incidents she
experienced, including harassment, taunting, and assault, do not rise to the level of
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persecution. See Li v. Ashcroft, 356 F.3d 1153, 1158 (9th Cir. 2004)
(characterizing persecution as “an extreme concept”).
However, when considering Dewi’s claim of a well-founded fear of future
persecution, the BIA did not have the benefit of our decision in Tampubolon,
which held that “Christian Indonesians” were a disfavored group. 610 F.3d at
1062. Accordingly, the BIA conducted a disfavored group analysis only as it
related to Dewi’s status as an ethnic Chinese, a previously recognized disfavored
group. See Sael v. Ashcroft, 386 F.3d 922, 927 (9th Cir. 2004). Because the BIA
decided Dewi’s appeal before we issued our decision in Tampubolon, we grant the
petition for review with respect to Dewi’s asylum and withholding claims and
remand for the BIA to conduct a disfavored group analysis in light of Dewi’s status
as a member of two disfavored groups. See 610 F.3d at 1062 (“[W]e must remand
to the BIA for it to determine whether the combination of disfavored group
evidence and evidence of individualized risk is sufficient to establish a clear
probability that petitioners will be persecuted if removed to Indonesia.”).
As Dewi presented no evidence that she would be tortured if removed to
Indonesia, she failed to establish eligibility for CAT relief. We therefore deny the
petition for review with respect to Dewi’s CAT claim.
The parties shall bear their own costs on appeal.
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PETITION GRANTED in part, DENIED in part, and REMANDED.
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