Filed: Aug. 21, 2012
Latest Update: Mar. 26, 2017
Summary: 11-2113-ag Ha v. Holder BIA Videla, IJ A089 262 843 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 NOT
Summary: 11-2113-ag Ha v. Holder BIA Videla, IJ A089 262 843 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 NOTA..
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11-2113-ag
Ha v. Holder
BIA
Videla, IJ
A089 262 843
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 21st day of August, two thousand twelve.
5
6 PRESENT:
7 BARRINGTON D. PARKER,
8 RICHARD C. WESLEY,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _________________________________________
12
13 SUN KIT SIONG HA,
14 Petitioner,
15
16 v. 11-2113-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: H. Raymond Fasano, Youman, Madeo &
24 Fasano, LLP, New York, New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Ada E. Bosque, Senior
28 Litigation Counsel; Puneet Cheema,
29 Trial Attorney, United States
1 Department of Justice, Office of
2 Immigration Litigation, Washington,
3 D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED, that the petition for review
8 is DENIED.
9 Sun Kit Siong Ha, a native and citizen of Indonesia,
10 seek review of an April 25, 2011, order of the BIA affirming
11 the May 14, 2009, decision of Immigration Judge (“IJ”)
12 Gabriel C. Videla, which denied his application for asylum,
13 withholding of removal, and relief under the Convention
14 Against Torture (“CAT”), and denying his motion to remand.
15 In re Sun Kit Siong Ha, No. A089 262 843 (B.I.A. Apr. 25,
16 2011), aff’g No. A089 262 843 (Immig. Ct. N.Y. City May 14,
17 2009). We assume the parties’ familiarity with the
18 underlying facts and procedural history in this case.
19 Under the circumstances of this case, we have reviewed
20 the IJ’s decision as supplemented by the BIA. See Yan Chen
21 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
22 applicable standards of review are well-established.
23 See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562
24 F.3d 510, 513 (2d Cir. 2009); Li Yong Cao v. U.S. Dep't of
25 Justice,
421 F.3d 149, 156-57 (2d Cir. 2005).
26 The only issues before us are Ha’s eligibility for
27 asylum or withholding of removal based on an alleged pattern
2
1 or practice of persecution of Chinese Christians in
2 Indonesia, and the BIA’s denial of Ha’s motion to remand.
3 Ha asserts that the agency erred in concluding that
4 there is not a pattern or practice of persecution of ethnic
5 Chinese Christians in Indonesia. See 8 C.F.R.
6 § 1208.16(b)(2)(i) (providing that an applicant shall not be
7 required to show that he will be singled out individually
8 for persecution if he establishes that there is a pattern or
9 practice of persecution of a group of similarly situated
10 persons); Mufied v. Mukasey, 508 F.3d 88, 91 (2d Cir. 2007).
11 The agency’s determination is supported by substantial
12 evidence. The Department of State Reports show that
13 although Chinese Christians had been subject to harassment
14 and discrimination, violence and discrimination had
15 decreased. The record evidence provides a sufficient basis
16 for finding no pattern or practice of persecution of ethnic
17 Chinese Christians in Indonesia. See Santoso v. Holder, 580
18 F.3d 110 (2d Cir. 2009).
19 Ha also challenges the BIA’s failure to consider
20 additional evidence he submitted on appeal. Because the
21 BIA, as an appellate body, does not conduct fact-finding, a
22 party asserting that the BIA cannot properly resolve an
23 appeal without further fact-finding must file a motion to
24 remand. 8 C.F.R. § 1003.1(d)(3)(iv). The BIA’s denial of a
3
1 motion to remand that “relies on newly available evidence is
2 held to the substantive requirements of a motion to reopen,”
3 Li Yong Cao, 421 F.3d at 156, and accordingly, Ha must show
4 that the “evidence sought to be offered is material and was
5 not available and could not have been discovered or
6 presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1).
7 Because the evidence Ha sought to submit related to
8 terrorist bombings of hotels, it did not demonstrate a
9 pattern or practice of persecution against ethnic Chinese
10 Christians in Indonesia.
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, any stay of
13 removal that the Court previously granted in this petition
14 is VACATED, and any pending motion for a stay of removal in
15 this petition is DISMISSED as moot. Any pending request for
16 oral argument in this petition is DENIED in accordance with
17 Federal Rule of Appellate Procedure 34(a)(2), and Second
18 Circuit Local Rule 34.1(b).
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
21
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