Filed: Jul. 11, 2011
Latest Update: Feb. 21, 2020
Summary: 10-1079-ag BIA Hidavat v. Holder Lamb, IJ A098 477 466 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
Summary: 10-1079-ag BIA Hidavat v. Holder Lamb, IJ A098 477 466 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE N..
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10-1079-ag BIA
Hidavat v. Holder Lamb, IJ
A098 477 466
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 11th day of July, two thousand eleven.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 JOSÉ A. CABRANES,
9 ROBERT D. SACK,
10 Circuit Judges.
11 _________________________________________
12
13 TONNY HIDAVAT,
14 Petitioner,
15
16 v. 10-1079-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Ronald S. Salomon, New York, New
24 York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Ernesto H. Molina,Jr.,
28 Assistant Director; Drew C.
29 Brinkman, Trial Attorney, United
30 States Department of Justice, Office
31 of Immigration Litigation,
32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED, that the petition for review
4 is DENIED.
5 Tonny Hidavat, a native and citizen of Indonesia, seeks
6 review of a February 26, 2010, order of the BIA affirming
7 the May 18, 2006, decision of Immigration Judge (“IJ”)
8 Elizabeth Lamb, which denied his applications for asylum,
9 withholding of removal and relief under the Convention
10 Against Torture (“CAT”). In re Tonny Hidavat, No. A098 477
11 466 (B.I.A. Feb. 26, 2010), aff’g No. A098 477 466 (Immig.
12 Ct. N.Y. City May 18, 2006). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 Under the circumstances of this case, we have reviewed
16 the IJ’s decision as supplemented by both BIA decisions.
17 See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
18 The applicable standards of review are well-established.
19 See Yanqin Weng v. Holder,
562 F.3d 510, 513 (2d Cir. 2009).
20 The agency reasonably determined that Hidavat failed to
21 demonstrate past persecution or a well-founded fear of
22 future persecution. As the agency found, the incidents
23 Hidavat described - being robbed at knife point on two
2
1 separate occasions - were insufficiently severe to
2 constitute persecution. See Ivanishvili v. U.S. Dep’t of
3 Justice, 433 F.3d 332, 341 (2d Cir. 2006) (in order for harm
4 to constitute persecution, it must be sufficiently severe,
5 rising above “mere harassment”). Moreover, even if Hidavat
6 had suffered harm severe enough to constitute persecution,
7 there is no evidence to suggest that it was on account of a
8 statutorily protected ground, as Hidavat presented no
9 evidence to show that the robbers had any motive other than
10 monetary gain. See 8 U.S.C. § 1101(a)(42).
11 Because Hidavat did not establish past persecution, he
12 is not entitled to a presumption of future persecution. See
13 8 C.F.R. § 208.13(b)(1). Although Hidavat argues,
14 independent from his claim of past persecution, a well-
15 founded fear of future persecution, based on a pattern and
16 practice of persecution of ethnic Chinese Christians, see
17 8 C.F.R. § 208.13(b)(2) (providing that an applicant for
18 asylum shall not be required to show that he will be singled
19 out individually for persecution if he establishes that
20 there is a pattern or practice of persecution of a group of
21 similarly situated persons); Mufied v. Mukasey,
508 F.3d 88,
22 91 (2d Cir. 2007), substantial evidence supports the BIA’s
3
1 determination that Hidavat did not establish this pattern
2 or practice in Indonesia, see Santoso v. Holder, 580 F.3d
3 110 (2d Cir. 2009). Furthermore, Hidavat’s contention that
4 the BIA engaged in improper fact-finding in determining that
5 there was no pattern or practice is without merit, as the
6 BIA merely applied the legal standard as to what constitutes
7 a “pattern or practice” to the evidence in Hidavat’s case.
8 See 8 C.F.R. § 1003.1(d)(3)(ii); Wallace v. Gonzales, 463
9 F.3d 135, 141 (2d Cir. 2006); see also Cubillos v. Holder,
10
565 F.3d 1054, 1058-59 (8th Cir. 2009) (concluding that the
11 BIA did not exceed its authority when it made a legal
12 conclusion as to whether the record facts established
13 persecution).
14 Because Hidavat did not establish past persecution or a
15 well-founded fear of future persecution, the agency did not
16 err in denying his applications for asylum and withholding
17 of removal. Moreover, because Hidavat’s CAT claim was based
18 on the same factual predicate, he similarly failed to meet
19 his burden for that form of relief. See Xue Hong Yang v.
20 U.S. Dep’t of Justice,
426 F.3d 520, 522-23 (2d Cir. 2005).
21 For the foregoing reasons, the petition for review is
22 DENIED. As we have completed our review, any stay of
23 removal that the Court previously granted in this petition
4
1 is VACATED, and any pending motion for a stay of removal in
2 this petition is DISMISSED as moot. Any pending request for
3 oral argument in this petition is DENIED in accordance with
4 Federal Rule of Appellate Procedure 34(a)(2), and Second
5 Circuit Local Rule 34.1(b).
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
8
9
5
