10-1115-ag
    Firmanto v. Holder
                                                                                  BIA
                                                                           Opaciuch, IJ
                                                                          A097 479 798
                          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 11th day of June, two thousand twelve.

    PRESENT:
             ROSEMARY S. POOLER,
             PETER W. HALL,
             GERARD E. LYNCH,
                  Circuit Judges.
    ______________________________________

    FERENCIA FIRMANTO,
             Petitioner,

                                                           10-1115-ag
                         v.                                NAC


    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    ______________________________________

    FOR PETITIONER:                H. Raymond Fasano, New York, NY.

    FOR RESPONDENT:                Tony West, Assistant Attorney
                                   General; Blair T. O’Connor,
                                   Assistant Director; Don G. Scroggin,
                          Trial Attorney, Office of
                          Immigration Litigation, Civil
                          Division, United States Department
                          of Justice, Washington, D.C.

    UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review

is GRANTED in part and DENIED in part.
    Petitioner, Ferencia Firmanto, a native and citizen of
Indonesia, seeks review of the February 26, 2010, and April

20, 2006, decisions of the BIA affirming the October 22,

2004, decision of Immigration Judge (“IJ”) Adam Opaciuch

denying her application for asylum, withholding of removal,
and relief under the Convention Against Torture (“CAT”).       In

re Firmanto, No.    A097 479 798 (B.I.A. Feb. 26, 2010, Apr.

20, 2006), aff’g No. A097 479 798 (Immig. Ct. N.Y. City Oct.

22, 2004).   We assume the parties’ familiarity with the

underlying facts and procedural history of the case.

    Under the circumstances of this case, we have reviewed
both the IJ’s and the BIA’s opinions “for the sake of
completeness.”     Zaman v. Mukasey, 

, 237 (2d Cir.

2008).   The applicable standards of review are well-
established.     See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin
Weng v. Holder, 

, 513 (2d Cir. 2009).




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    Because Firmanto does not challenge the agency’s denial

of CAT relief, or either asylum or withholding of removal
based on an individualized fear of future harm separate from
her alleged past persecution, we address the merits of her

petition only as it pertains to asylum and withholding of
removal based on past persecution and a claimed pattern or
practice of persecution against Christian and ethnic Chinese

Indonesians.   See Yueqing Zhang v. Gonzales, 

,
541 n.1, 545 n.7 (2d Cir. 2005).

    The agency erred by mis-characterizing the record and

by either ignoring record evidence supporting Firmanto’s

claim or failing to provide sufficient reasoning to explain
why the incidents of harm Firmanto suffered did not

cumulatively amount to persecution.   See Delgado v. Mukasey,

, 705 (2d Cir. 2007) (requiring the agency to

provide a “minimum level of analysis” and “some indication

that the IJ considered material evidence supporting a
petitioner’s claim”).   Given that Firmanto testified that
during an incident in 1998 several men surrounded her and

ripped off her school uniform such that she had to cover her
breasts and thought she would have been raped if she had not
been helped to escape, and stated in her written application

that during an incident in 1999 individuals pointed a knife
at her and “touched [her] private parts,” the IJ’s statement

                              3
that there was “no indication of any type of physical

mistreatment” mis-characterized the record.
    Accordingly, the agency either ignored these incidents,
or failed to explain why a sexual assault on one occasion

and an attempted sexual assault on another occasion did not
amount to persecution when considered with the other harms
Firmanto claims to have suffered.   See Tian-Yong Chen v.

INS, 

, 128 (2d Cir. 2004) (determining that the
agency “made a fundamental error” by ignoring petitioner’s

testimony that he had been beaten and “flatly asserting that

no such testimony existed in the record”).    Thus, given that

this Court has held that there is no requirement of
“permanent or serious injury” to support a finding of past

persecution where the definition encompasses “a variety of

forms of adverse treatment, including non-life[-]threatening

violence and physical abuse or non-physical forms of harm,”

 Edimo-Doualla v. Gonzales, 

, 283 (2d Cir, 2006)
(alteration in original), the agency’s past persecution
finding is flawed and remand is required for the agency to

determine whether, absent the error and in full
consideration of all incidents of mistreatment, Firmanto
suffered harm in the aggregate rising to the level of

persecution.   See Tian-Yong Chen, 359 F.3d at 128-29.



                              4
    The agency reasonably concluded that Firmanto failed to

establish the existence of a pattern or practice of
persecution against Christians and ethnic Chinese in
Indonesia. Country conditions evidence in the record

indicated that, while there continued to be incidents of
harm against Chinese Christians, Firmanto did not establish
a pattern or practice of persecution. See Santoso v. Holder,

, 112 (2d Cir. 2009) (upholding agency
conclusion of no pattern or practice of persecution in case

involving similar country conditions evidence). Accordingly,

we deny the petition in part.       While Firmanto argues that

the agency did not consider all of the country conditions
evidence presented, the BIA referenced and cited to evidence

in the record, and so we find the record does not

compellingly suggest that the agency failed to consider any

evidence.   See Xiao Ji Chen v. U.S. Dep’t of Justice, 

, 338 n.17 (2d Cir. 2006).
    Although the agency did not err in concluding that
Firmanto failed to establish a pattern or practice of

persecution, because the agency’s past persecution finding
is flawed, and because a finding of past persecution can be
a basis for granting relief and creates a presumption of a

well-founded fear of persecution, remand to the agency is
still required.   See 8 C.F.R. § 1208.13(b)(1).      On remand,

                                5
the agency need not further address Firmanto’s assertion

that she will suffer future harm separate from properly
analyzing her claim that she has suffered past persecution.
    For the foregoing reasons, the petition for review is

GRANTED in part and DENIED in part.     As we have completed
our review, the 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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