Filed: Dec. 15, 2009
Latest Update: Mar. 02, 2020
Summary: 08-4418-ag Toar v. Holder BIA Chew, IJ A099 928 215 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION MUST EITHER BE TO THE
Summary: 08-4418-ag Toar v. Holder BIA Chew, IJ A099 928 215 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION MUST EITHER BE TO THE ..
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08-4418-ag
Toar v. Holder
BIA
Chew, IJ
A099 928 215
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS
FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A
LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
“(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.
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 15 th day of December, two thousand nine.
5
6 PRESENT:
7 HON. GUIDO CALABRESI,
8 HON. ROBERT A. KATZMANN,
9 HON. DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _______________________________________
12
13 IVANE TOAR,
14 Petitioner,
15
16 v. 08-4418-ag
17 NAC
18 ERIC H. HOLDER JR., 1 U.S. ATTORNEY
19 GENERAL,
20 Respondent.
21
22 _______________________________________
1
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder Jr. is
automatically substituted for former Attorney General
Michael B. Mukasey as respondent in this case.
1 FOR PETITIONER: Theodore Vialet, New York, New York.
2
3 FOR RESPONDENT: Michael F. Hertz, Acting Assistant
4 Attorney General, Barry J.
5 Pettinato, Assistant Director,
6 Carmel A. Morgan, Trial Attorney,
7 Office of Immigration Litigation,
8 Civil Division, United States
9 Department of Justice, Washington,
10 D.C.
11
12 UPON DUE CONSIDERATION of this petition for review of a
13 decision of the Board of Immigration Appeals (“BIA”), it is
14 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
15 review is DENIED.
16 Petitioner Ivane Toar, a native and citizen of
17 Indonesia, seeks review of an August 13, 2008 order of the
18 BIA affirming the October 18, 2007 decision of Immigration
19 Judge (“IJ”) George T. Chew, denying her application for
20 asylum, withholding of removal, and relief under the
21 Convention Against Torture (“CAT”). In re Ivane Toar, No.
22 A099 928 215 (B.I.A. Aug. 13, 2008), aff’g No. A099 928 215
23 (Immig. Ct. N.Y. City Oct. 18, 2007). We assume the
24 parties’ familiarity with the underlying facts and
25 procedural history of the case.
26 As an initial matter, because Toar fails to challenge
27 the agency’s denial of her CAT claim before this Court, we
28 deem any such argument waived. See Yueqing Zhang v.
2
1 Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005).
2 When the BIA issues an opinion that fully adopts the
3 IJ’s decision, this Court reviews the IJ’s decision. See
4 Mei Chai Ye v. U.S. Dep’t of Justice,
489 F.3d 517, 523 (2d
5 Cir. 2007). We review the agency’s factual findings under
6 the substantial evidence standard. See, e.g., Manzur v.
7 U.S. Dep’t of Homeland Sec.,
494 F.3d 281, 289 (2d Cir.
8 2007). We review de novo questions of law and the
9 application of law to undisputed fact. See Salimatou Bah v.
10 Mukasey,
529 F.3d 99, 110 (2d Cir. 2008).
11 We find that the record supports the agency’s
12 determination that Toar failed to demonstrate a well-founded
13 fear of future persecution. While Toar does not challenge
14 the agency’s determination that she did not suffer past
15 persecution, she relies on past events to support her claim
16 that she has a well-founded fear of future persecution.
17 Toar asserts that, taken together, the threats, insults, and
18 injuries that she sustained while in Indonesia, and the
19 background materials describing attacks on Christians in
20 Indonesia, are sufficient to demonstrate her well-founded
21 fear. Her arguments, however, are unavailing. Toar fails
22 to demonstrate that the threats, insults, and injuries she
23 endured in the past rose to the level of persecution. See
3
1 Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d
2 Cir. 2006). It follows then that even if she were to face
3 similar conditions upon her return, the agency did not err
4 in finding her fear of persecution not objectively well-
5 founded.
6 Moreover, the agency’s analysis of Toar’s pattern or
7 practice claim is not, under the circumstances of this case,
8 a basis for remand. We have previously noted that the BIA’s
9 “systematic and pervasive” standard, announced in In re A-M-
10 , 23 I & N Dec. 737 (B.I.A. 2005), does “not provide us
11 sufficient guidance” to evaluate pattern and practice
12 claims. See Mufied v. Mukasey,
508 F.3d 88, 92 (2d Cir.
13 2007). Since Mufied, this Court has remanded several cases
14 on the ground that it could not review the agency’s pattern-
15 and-practice determination without further standards. See,
16 e.g., Effendi v. Holder, No. 07-5323,
2009 WL 2271019 (2d
17 Cir. July 30, 2009); Firmanto v. Mukasey, 259 F.App’x 366,
18 366-67 (2d Cir. 2008); Wirajaya v. Mukasey, 290 F.App’x 428
19 (2d Cir. 2008). In our recent decision in Santoso v.
20 Holder, however, we held that under the circumstances of
21 that case, which include “where the BIA explicitly discussed
22 the pattern or practice claim and the record includes
23 substantial documentary evidence regarding the conditions in
4
1 petitioner’s homeland,” remand was not necessary. 580 F.3d
2 110, 112 n.1 (2d Cir. 2009). We similarly find that remand
3 is not necessary in this case. We nonetheless renew our
4 request that the BIA clarify its pattern-and-practice
5 standard.
6 For the foregoing reasons, the petition for review is
7 DENIED. As we have completed our review, any stay of
8 removal that the Court previously granted in this petition
9 is VACATED, and any pending motion for a stay of removal in
10 this petition is DISMISSED as moot. Any pending request for
11 oral argument in this petition is DENIED in accordance with
12 Federal Rule of Appellate Procedure 34(a)(2), and Second
13 Circuit Local Rule 34(b).
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk
16
17
18 By:____________________________
5
