* 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).

*** The Honorable John W. Sedwick, Senior District Judge for the U.S. District Court for Alaska, Anchorage, sitting by designation. NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

ELPHINSTEN WINATA, Petitioner,

v. ERIC H. HOLDER, Jr., Attorney General, Respondent. No. 08-70915 Agency No. A095-838-433

MEMORANDUM *

On Petition for Review of an Order of the Board of Immigration Appeals Submitted July 15, 2011 ** Portland, Oregon Before: PREGERSON and WARDLAW, Ci rcuit Judges, and SEDWICK, District Judge. *** Elphinsten Winata, a native and citizen of Indonesia, petitions for review of the Board of Immigration Appeals’ (BIA) order dismissing his appeal from an 

# FILED

AUG 15 2011
MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS2 Immigration Judge’s (IJ) decision denying his applications for asylum, withholding of removal, and protection under the Conve ntion Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252. We gran t the petition for review in part, deny in part, and remand for further proceedings. Because the BIA issued a written opinion, we review the BIA’s decision. Aden v. Holder , 589 F.3d 1040, 1043 (9th Cir. 2009). However, because the BIA did not explicitly state that it was conduc ting a de novo review, we may look to the IJ’s decision as a guide for the reasoning behind the BIA’s decision, particularly on issues that the BIA analy zed in a cursory manner. See Ahmed v. Keisler , 504 F.3d 1183, 1190-91 (9th Cir. 2007). We review legal questions de novo, and factual findings for substantial evidence. Wakkary v. Holder , 558 F.3d 1049, 1056 (9th Cir. 2009). Winata, a Chinese Christian, asserts th at he fears persecution in Indonesia on account of his ethnicity, religion, and imputed political opinion. The IJ found that Winata’s testimony was credible, but that th e events recounted did not rise to the level of past persecution. The IJ also concluded that while the disfavored group analysis applied to Winata’s claim, see Sael v. Ashcroft , 386 F.3d 922, 925 (9th Cir. 2004), Winata had not shown a sufficiently individualized risk of harm to1 The BIA did not address whether Wi nata had established a well-founded fear of persecution under the disfavored group analysis; therefore we review the IJ’s decision with respect to this claim. 3 establish a well-founded fear of future pe rsecution. The BIA affirmed, concluding that Winata had not established that he had been subjected to past persecution. 1
The BIA and IJ failed to account for Wi nata’s age at the time these events occurred. This was legal error. See Hernandez-Ortiz v. Gonzales , 496 F.3d 1042 (9th Cir. 2007). In Hernandez-Ortiz , we held that when the agency evaluates an asylum application based on events pe rceived by the petitioner when he was a child, the agency must “look at the even ts from [the child’s] perspective, [and] measure the degree of . . . injur[y] by [t he] impact on children of [that] age.” Id. at 1046. See also id. at 1045 (“The Guidelines for Children’s Asylum Claims advises that harm a child fears or has suffered . . . may be relatively less than that of an2 The government’s supplemental brief ar gues that Winata failed to exhaust this legal claim because Winata did not argue before the BIA that his young age affected his claims for relief, and thatwe therefore lack jurisdiction over this argument. However, the argument that th e agency should have evaluated Winata’s showing of persecution in light of his age is not a new legal claim . Rather, this is merely an extension of Winata’s appropr iately exhausted argument that he had made a sufficient showing of persecution. We have made clear that the exhaustion requirement should not be employed in a “formalistic manner.” Figueroa v. Mukasey , 543 F.3d 487, 492 (9th Cir. 2008). As long as “the issue was before the BIA such that it had the opportunity to correct its error,” id ., the issue has been exhausted. It also bears noting that br iefing before the BIA was completed before Hernandez-Ortiz was published. Cf. Alcaraz v. INS, 384 F.3d 1150, 1158 (9th Cir. 2004) (“We do not require an alien to e xhaust administrative remedies on legal issues based on events that occur after briefing to the BIA has been completed.”). The government also argues that Winata has waived this argument by failing to raise it in his opening brief. While we “will not ordinarily consider matters on appeal that are not specifically and distin ctly argued in appella nt’s opening brief,” Koerner v. Grigas , 328 F.3d 1039, 1048 (9th Cir. 2003) (internal quotation marks and citations omitted), we will do so if the failure to address the issue would result in “manifest injustice,” or if the failure to raise the issue does not prejudice the opposing party. See Alcaraz , 384 F.3d at 1161. Here, both circumstances are present: (1) the failure to raise this issu e would result in manifest injustice because Winata would otherwise be precluded fro m establishing his eligibility for asylum under the law of our circuit; and (2) the panel cured any potential prejudice to the government by requesting supplemental briefs on the application of HernandezOrtizfrom both parties. 4 adult and still qualify as persecution.” (i nternal quotation marks omitted) (quoting Liu v. Ashcroft , 380 F.3d 307, 314 (7th Cir. 2004))). 2 Here, although all of the relevant even ts occurred when Winata was between the ages of eight and fifteen, the agency fa iled to evaluate these events in light of Winata’s young age. When Winata was ei ght years old, his sister was kidnapped3 As noted in Hernandez-Ortiz , injuries to family members are particularly traumatic for young children. While the primary motivation for the driver’s attack may have been personal retribution for his dismissal, our case law is clear that for pre-REAL ID Act asylum applications, “m ixed motives do not negate a legitimate nexus” to a protected ground, Baghdsaryan v. Holder , 592 F.3d 1018, 1023 (9th Cir. 2010). Accordingly, even if the dr iver was primarily motivated by personal retribution, as long as one of the motivati ons was related to his sister’s ethnicity or religion, this incident meets the nexus requirement. While the police’s response to the driver’s attack may mean that this ev ent does not qualify as an incident of past persecution, the kidnapping incident may be relevant to Winata’s claim of a wellfounded fear of future persecution, especially in light of the surrounding circumstances and his young age at the time. 5 and held for ransom by his family’s former driver, a native Indonesian, and she was cut severely on her head and hands during this attack. 3 In 1998, when Winata was twelve years old, he observed anti-Ch inese riots from his parent’s apartment, and his parents personally observed ri oters setting Chinese persons on fire. After the riots, public demonstrations targeting the ethnic Chinese were regular occurrences, and Winata was personally s ubjected to verbal assaults from his classmates that school authorities refused to proscribe. Finally, in 2000, when Winata was fourteen years old, a bomb e xploded at the church inside his school. The bomb exploded in the school’s parking lot after a Christmas Eve mass that Winata was supposed to attend, but had notattended because he was sick. Winata testified that indigenous Indonesians had planted this bomb.4 The BIA’s decision failed to mention this traumatic incident, which must be considered when evaluating the merits of Winata’s claim. 6 We remand to the agency to consider, in the first instance, whether these incidents rise to the level of past pe rsecution, and whether, under the disfavored group analysis, they establish a well-founded fear of future persecution. See INS v. Ventura, 537 U.S. 12, 16 (2002). When evaluating Winata’s showing of past persecution and individualized risk of futu re persecution, we direct the agency to consider the bombing of Winata’s school church after a Christmas Day mass that Winata had planned to attend, but did not only because he became ill. 4 We note that under the disfavored group analysis, “b ecause the record establishes that ethnic Chinese are significantly disfavored in Indonesia, [Winata] must demonstrate a ‘comparatively low’ level of individualized risk in order to prove that [he] has a well-founded fear of future persecution.” Sael , 386 F.3d at 927 (quoting Hoxha v. Ashcroft , 319 F.3d 1179, 1183 (9th Cir. 2003)). And under Hernandez-Ortiz , Winata’s showing of a comparatively low level of individualized risk must also be evaluated in light of Winata’s age at the time these events occurred. Substantial evidence supports the denial of Winata’s application for withholding of removal as Winata did not establish that it was “more likely than not” that he would be subject to persecuti on in Indonesia. 8 C.F.R. § 208.16(b)(2).7 Substantial evidence also supports the BIA’ s denial of CAT relief as Winata failed to establish it was more likely than not that he would be subject to torture. 8 C.F.R. § 208.16(c)(2); see Kamalthas v. INS , 251 F.3d 1279, 1283 (9th Cir. 2001). Each party shall bear its own costs for this petition for review. PETITION FOR REVIEW GRANTED in part; DENIED in part; REMANDED.