Filed: Jun. 01, 2010
Latest Update: Feb. 21, 2020
Summary: 09-2423-ag Jusuf v. Holder BIA Van Wyke, IJ A096 263 111 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: 09-2423-ag Jusuf v. Holder BIA Van Wyke, IJ A096 263 111 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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09-2423-ag
Jusuf v. Holder
BIA
Van Wyke, IJ
A096 263 111
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 1 st day of June, two thousand ten.
PRESENT:
JON O. NEWMAN,
REENA RAGGI,
PETER W. HALL,
Circuit Judges.
_______________________________________
KURNIAWAN JUSUF,
Petitioner,
v. 09-2423-ag
NAC
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Justin Conlon, North Haven, Conn.
FOR RESPONDENT: Tony West, Assistant Attorney General,
Linda S. Wernery, Assistant Director,
Gregory M. Kelch, Attorney, Office of
Immigration Litigation, Civil Divi-
sion, United States Department of
Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
review is DENIED.
Petitioner Kurniawan Jusuf, a native and citizen of
Indonesia, seeks review of a May 8, 2009, order of the BIA,
affirming the April 19, 2007, decision of Immigration Judge
(“IJ”) William Van Wyke, pretermitting his application for
asylum, and denying his applications for withholding of
removal and relief under the Convention Against Torture
(“CAT”). In re Kurniawan Jusuf, No. A096 263 111 (B.I.A. May
8, 2009), aff’g No. A096 263 111 (Immig. Ct. N.Y. City Apr.
19, 2007). We assume the parties’ familiarity with the
underlying facts and procedural history of the case.
Under the circumstances of this case, we review the IJ’s
decision as modified by the BIA decision. See Xue Hong Yang
v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).
The applicable standards of review are well-established. See
8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder,
562 F.3d 510,
513 (2d Cir. 2009).
As an initial matter, Jusuf concedes that this Court is
without jurisdiction to review the agency’s pretermission of
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his asylum claim, see 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D),
and concedes that the agency’s denial of CAT relief is
supported by the record. Accordingly, we only review Jusuf’s
withholding of removal claim.
I. Past Persecution
The record supports the agency’s determination that Jusuf
failed to demonstrate that he suffered past persecution.
Jusuf argues that the agency failed to consider the cumulative
effect of the past harm he suffered. See Manzur v. U.S. Dep’t
of Homeland Sec., 494 F.3d 281, 290 (2d Cir. 2007); see also
Poradisova v. Gonzales,
420 F.3d 70, 79-80 (2d Cir. 2005).
However, the IJ properly considered his experiences
cumulatively, stating in his decision that persecution can
constitute harm experienced “all at one time” or “over a long
period of time.” The IJ concluded that “on balance the harm
that [Jusuf] described constitutes fairly serious
discrimination over a period of time. But we believe that we
should not describe it as persecution as such.” The BIA
affirmed the IJ’s decision and stated that “[t]he incidents
related by [Jusuf] do not rise to the level of past
persecution.” The BIA further explained that Jusuf “was not
severely harmed and some of the incidents he relates appear to
be related to criminal behavior or harassment and
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discrimination.” Therefore, the record indicates that the
agency properly considered Jusuf’s experiences in the
aggregate. See Poradisova, 420 F.3d at 79-80; Ivanishvili v.
U.S. Dep’t of Justice,
433 F.3d 332, 340 (2d Cir. 2006)
(finding that the harm suffered must be sufficiently severe,
rising above “mere harassment”).
Furthermore, Jusuf erroneously relies on Jorge-Tzoc v.
Gonzales, 435 F.3d 146, 150 (2d Cir. 2007), in support of his
argument that the agency failed to adequately consider his
young age at the time of his mistreatment. Here, the agency
was not considering the issue present in Jorge-Tzoc – whether
an applicant for asylum who had not directly suffered
persecution could still establish eligibility for relief.
Rather, the agency was considering the issue of whether Jusuf,
who himself suffered harm, established that the harm amounted
to persecution, and it reasonably found that he did not.
The BIA also did not err in finding that Jusuf’s
mistreatment that stemmed from “criminal behavior” did not
constitute persecution. General violence “does not lend
support to an asylum claim since a well-founded fear of
persecution must be on account of an enumerated ground set
forth in the Act, and general crime conditions are not a
stated ground.” Melgar de Torres v. Reno, 191 F.3d 307, 314
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(2d Cir. 1999). Moreover, contrary to Jusuf’s argument, the
BIA did not hold that mistreatment can never constitute
persecution if it results from mob violence. The BIA cited
Wijono v. Gonzales, 439 F.3d 868, 872 (8th Cir. 2006) (citing
Madjakpor v. Gonzales,
406 F.3d 1040, 1044 (8th Cir. 2005))
for the proposition that “low-level intimidation and
harassment alone do not rise to the level of persecution
. . . nor does harm arising from general condition such as
anarchy, civil war, or mob violence . . . ” to support its
reasonable conclusion that the incidents related by Jusuf do
not rise to the level of past persecution.
II. Well-Founded Fear
Because Jusuf failed to demonstrate that he suffered past
persecution, he was not entitled to a presumption of a well-
founded fear of future persecution. See 8 C.F.R.
§ 1208.13(b). To the extent that Jusuf argues that he has
demonstrated a pattern or practice of persecution against
ethnic-Chinese Christians in Indonesia, the agency considered
Jusuf’s evidence and reasonably found that he failed to
demonstrate a pattern or practice to qualify for withholding
of removal. See Mufied v. Mukasey, 508 F.3d 88, 91 (2d Cir.
2007); see also Santoso v. Holder,
580 F.3d 110 (2d Cir.
2009). Accordingly, substantial evidence supports the
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agency’s finding that Jusuf failed to establish his burden for
withholding of removal, and the denial of his application was
proper.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in this petition is VACATED,
and any pending motion for a stay of removal in this petition
is DISMISSED as moot. Any pending request for oral argument
in this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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