Sutandar

MEMORANDUM *

Petitioner Martinus Sutandar (Sutan-dar), a native and citizen of Indonesia, appeals the Board of Immigration Appeals’ (BIA) decision denying him asylum and withholding of removal. The BIA found that the past treatment Sutandar suffered in Indonesia did not rise to the level of persecution and that his fear of future persecution was not objectively reasonable. Because substantial evidence does not support the BIA’s determination, we grant Sutandar’s petition for review and remand to the BIA for further proceedings.

1. The BIA erred in finding that the mistreatment Sutandar suffered did not rise to the level of persecution. Neither the IJ nor the BIA made an adverse credibility finding. Accordingly, this court must take the testimony of Sutandar as *594 true. See Kalubi v. Ashcroft, 364 F.3d 1134, 1137 (9th Cir.2004).

In his testimony, Sutandar described two incidents in which he was physically beaten on account of his Chinese ethnicity and Christian religion. The first incident occurred in 1995 while Sutandar was driving to church. Sutandar was stopped by a group of about eight to ten Muslim fundamentalists who broke the driver’s side window of his car and demanded…

dissenting in part:

Not long ago, the Supreme Court summarily reversed one of our immigration decisions and reminded us of a basic principle of administrative law: when the BIA has not considered an issue, “the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.” I.N.S. v. Ventura, 537 U.S. 12, 16 , 123 S.Ct. 353 , 154 L.Ed.2d 272 (2002) (per curiam) (quoting Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 , 105 S.Ct. 1598 , 84 L.Ed.2d 643 (1985)) (internal quotation marks omitted). Just a few years later, the Court summarily reversed us again, pointing out that our faüure to remand a similar immigration issue to the BIA is an “error [that] is obvious in light of Ventura.” Gonzales v. Thomas, 547 U.S. 183, 185 , 126 S.Ct. 1613 , 164 L.Ed.2d 358 (2006) (per curiam) (quotation marks omitted). Reading these cases together, the Supreme Court’s message to the Ninth Circuit is clear: “What about the ordinary remand rule don’t you understand?”

But here we go again. The facts and procedural posture of this case are effectively identical to Ventura . 1 Here, as in Ventura , the IJ and BIA determined that the…

FILED

NOT FOR PUBLICATION SEP 16 2011

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

MARTINUS SUTANDAR, No. 06-72494

Petitioner, Agency No. A079-535-430

v.

MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted October 8, 2010 Pasadena, California

Before: PREGERSON, D.W. NELSON, and IKUTA, Circuit Judges.

Petitioner Martinus Sutandar (Sutandar), a native and citizen of Indonesia,

appeals the Board of Immigration Appeals' (BIA) decision denying him asylum

and withholding of removal. The BIA found that the past treatment Sutandar

suffered in Indonesia did not rise to the level of persecution and that his fear of

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

1 future persecution was not objectively reasonable. Because substantial evidence

does not support the BIA's determination, we grant Sutandar's petition for…