Filed: Aug. 09, 2012
Latest Update: Mar. 26, 2017
Summary: 10-5184-ag Hernadi v. Holder BIA Nelson, IJ A089 913 064 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 TH
Summary: 10-5184-ag Hernadi v. Holder BIA Nelson, IJ A089 913 064 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..
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10-5184-ag
Hernadi v. Holder
BIA
Nelson, IJ
A089 913 064
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 9th day of August, two thousand twelve.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 RICHARD C. WESLEY,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _________________________________________
12
13 PUDJI HERNADI
14 Petitioner,
15
16 v. 10-5184-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _________________________________________
22
23 FOR PETITIONER: Oleh R. Tustaniwsky, Brooklyn,
24 New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Ernesto H. Molina, Jr.,
28 Assistant Director; Nancy N. Safavi,
29 Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
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 Petitioner Pudji Hernadi, a native and citizen of
6 Indonesia, seeks review of a November 30, 2010, order of the
7 BIA, affirming the April 15, 2009, decision of an
8 Immigration Judge (“IJ”), which pretermitted his application
9 for asylum and denied his application for withholding of
10 removal, and relief under the Convention Against Torture
11 (“CAT”). In re Pudji Hernadi, No. A089 913 064 (B.I.A. Nov.
12 30, 2010), aff’g No. A089 913 064 (Immig. Ct. N.Y. City
13 Apr. 15, 2009). We assume the parties’ familiarity with the
14 underlying facts and procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 both the IJ’s and BIA’s opinions “for the sake of
17 completeness.” See Zaman v. Mukasey, 514 F.3d 233, 237 (2d
18 Cir. 2008). The applicable standards of review are well-
19 established. See 8 U.S.C. §1252(b)(4)(B); Yanqin Weng v.
20 Holder,
562 F.3d 510, 513 (2d Cir. 2009).
21 As an initial matter, Hernadi does not challenge the
22 agency’s pretermission of his asylum claim nor its finding
2
1 that the harm he alleged did not rise to the level of
2 persecution.
3 In the absence of past persecution, an applicant for
4 withholding of removal need not demonstrate that he would be
5 singled out for future persecution if the applicant shows:
6 (1) “a pattern or practice of persecution of a group of
7 persons similarly situated to the applicant;” and (2) “his
8 or her own inclusion in and identification with such groups
9 of persons such that it is more likely than not that [his]
10 life or freedom would be threatened.” 8 C.F.R.
11 § 1208.16(b)(2). To the extent that Hernadi argues that the
12 agency failed to address his pattern or practice argument,
13 the record demonstrates that the agency reasonably found
14 that Hernadi failed to establish a pattern or practice of
15 persecution of Chinese non-Muslims in Indondesia. Mufied v.
16 Mukasey, 508 F.3d 88, 92 (2d Cir. 2007).
17 Specifically, while the record demonstrates that “the
18 [Indonesian] government sometimes tolerated private actors’
19 discrimination against and abuse of individuals based on
20 their religious beliefs,” the record also states that in an
21 effort to curb violence against Chinese non-Muslims, the
22 Indonesian government has undertaken “notable efforts to
3
1 build interfaith harmony.” Moreover, Hernadi has failed to
2 distinguish his case from Santoso v. Holder, 580 F.3d 110,
3 112 (2d Cir. 2009) (noting that “Indonesia is a nation state
4 consisting approximately of 6,000 inhabited islands and
5 that, in many places, Roman Catholicism is predominant.”);
6 thus the agency reasonably concluded that the Indonesian
7 government was not unable or unwilling to control violence
8 against non-Muslim Chinese Indonesians, and that such
9 violence did not support a pattern or practice claim.
10 The agency also reasonably noted that Hernadi’s wife
11 and children have remained in Indonesia without further
12 incident. See Melgar de Torres v. Reno,
191 F.3d 307, 313
13 (2d Cir. 1999) (finding that where asylum applicant’s mother
14 and daughters continued to live in petitioner’s native
15 country, claim of well-founded fear was diminished); see
16 also Lie v. Ashcroft,
396 F.3d 530, 537 (3d Cir. 2005)
17 (stating that fear of persecution is diminished when “family
18 members remain in petitioner’s native country without
19 meeting harm”); see also Matter of A-E-M-, Int. Dec. 3338 at
20 *4 (finding that applicant lacked a well-founded fear, in
21 part, because his family members remained unharmed in Peru
22 since his departure). Thus, in light of the record
4
1 evidence, and Hernadi’s inability to distinguish his claim
2 from our ruling in Santoso, the agency reasonably found that
3 Hernadi failed to demonstrate a pattern or practice of
4 persecution against Chinese non-Muslims in Indonesia. See
5 Santoso, 580 F.3d at 112.
6 As the agency did not err in concluding that Hernadi
7 failed to establish a clear probability of future
8 persecution if returned to Indonesia, it did not err in
9 denying his application for withholding of removal or CAT
10 relief insofar as his withholding and CAT claims shared the
11 same factual predicate. See Xue Hong Yang v. U.S. Dep’t of
12 Justice, 426 F.3d 520, 523 (2d Cir. 2006).
13 For the foregoing reasons, the petition for review is
14 DENIED. As we have completed our review, any stay of
15 removal that the Court previously granted in this petition
16 is VACATED, and any pending motion for a stay of removal in
17 this petition is DISMISSED as moot. Any pending request for
18 oral argument in this petition is DENIED in accordance with
19 Federal Rule of Appellate Procedure 34(a)(2), and Second
20 Circuit Local Rule 34.1(b).
21 FOR THE COURT:
22 Catherine O’Hagan Wolfe, Clerk
23
24
5
