Filed: Feb. 24, 2012
Latest Update: Feb. 22, 2020
Summary: 10-4973-ag Benny v. Holder BIA Nelson, IJ A099 939 077 A099 939 027 A099 939 078 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 ELEC
Summary: 10-4973-ag Benny v. Holder BIA Nelson, IJ A099 939 077 A099 939 027 A099 939 078 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 ELECT..
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10-4973-ag
Benny v. Holder
BIA
Nelson, IJ
A099 939 077
A099 939 027
A099 939 078
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 24th day of February, two thousand twelve.
5
6 PRESENT:
7 PIERRE N. LEVAL,
8 JOSÉ A. CABRANES,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 FNU BENNY, ALICE HARIYANTO,
14 DYLAN SALIM, AKA DILLON SALIM,
15 Petitioners,
16
17 v. 10-4973-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONERS: Jack Herzig, Wyncote, Pennsylvania.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; James A Hunolt, Senior
28 Litigation Counsel; Sarah L. Vuong,
1 Trial Attorney, Office of
2 Immigration Litigation, United
3 States Department of Justice,
4 Washington, D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 decision of the Board of Immigration Appeals (“BIA”), it is
8 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
9 review is DENIED.
10 Fnu Benny, Alice Hariyanto, and Dylan Salim, natives
11 and citizens of Indonesia, seek review of a November 17,
12 2010, decision of the BIA affirming the March 17, 2009,
13 decision of an Immigration Judge (“IJ”) denying their
14 application for asylum and withholding of removal. In re
15 Benny Fnu, Alice Hariyanto, Dylan Salim, aka Dillon Salim,
16 Nos. A099 939 077/027/078 (B.I.A. Nov. 17, 2010), aff’g Nos.
17 A099 939 077/027/078 (Immig. Ct. N.Y. City Mar. 17, 2009).
18 We assume the parties’ familiarity with the underlying facts
19 and procedural history of this case.
20 Under the circumstances of this case, we have reviewed
21 the IJ’s decision as modified by the BIA decision. See Xue
22 Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d
23 Cir. 2005). The applicable standards of review are well-
24 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
25 Holder,
562 F.3d 510, 513 (2d Cir. 2009).
2
1 As preliminary matters, because Petitioners do not
2 challenge the agency’s determination that their asylum
3 applications were untimely under 8 U.S.C. § 1158(a)(2)(B),
4 and because Petitioners do not argue that they are eligible
5 for relief under the Convention Against Torture (“CAT”), we
6 do not address those claims. Accordingly, we address only
7 the agency’s denial of withholding of removal, and conclude
8 that the agency reasonably determined that Petitioners
9 failed to sustain their burden of demonstrating their
10 eligibility for this form of relief. See Joaquin-Porras v.
11 Gonzales, 435 F.3d 172, 181 (2d Cir. 2006).
12 Although the agency failed to evaluate explicitly the
13 cumulative impact of the incidents Benny and Hariyanto
14 experienced in Indonesia, we find that remand would be
15 futile. See Manzur v. U.S. Dep’t of Homeland Sec.,
494 F.3d
16 281, 289-90 (2d Cir. 2007) (providing that the agency should
17 evaluate the cumulative impact of an applicant’s
18 experiences, but recognizing that “even if an IJ’s decision
19 contains errors, the decision will not be vacated and
20 remanded if doing so would be futile”). We have recognized
21 that a valid past persecution claim can be based on harm
22 other than threats to life or freedom, “includ[ing] non-
3
1 life-threatening violence and physical abuse,” Beskovic v.
2 Gonzales, 467 F.3d 223, 226 n.3 (2d Cir. 2006) (citing Tian-
3 Yong Chen v. INS,
359 F.3d 121, 128 (2d Cir. 2004)), but the
4 harm must be sufficiently severe, rising above “mere
5 harassment,” Ivanishvili v. U.S. Dep’t of Justice,
433 F.3d
6 332, 341 (2d Cir. 2006). Furthermore, “[w]e have emphasized
7 that persecution is an extreme concept that does not include
8 every sort of treatment our society regards as offensive.”
9 Mei Fun Wong v. Holder,
633 F.3d 64, 72 (2d Cir. 2011)
10 (internal quotation marks and citations omitted).
11 In this case, the agency reasonably concluded
12 Hariyanto’s presence during an incident at her university,
13 in which individuals damaged campus fences and threatened to
14 burn the university, and Hariyanto and Benny’s presence near
15 two bombings, in which they were not injured, did not
16 establish past persecution, as general violence does not
17 constitute persecution. See Melgar de Torres v. Reno, 191
18 F.3d 307, 314 n.3 (2d Cir. 1999). The agency also
19 reasonably concluded that the incident in which individuals
20 threw stones at Hariyanto’s house, rattled fences, and
21 shouted anti-Chinese provocations, and the incident in which
22 individuals damaged the front mirror of Hariyanto’s car, did
4
1 not establish past persecution, as she did not testify that
2 she was beaten or otherwise physically hurt during these
3 incidents, and because general crime conditions are not
4 grounds for asylum and unfulfilled threats alone are
5 insufficient to demonstrate past persecution. See Melgar de
6 Torres, 191 F.3d at 314; Tian-Yong
Chen, 359 F.3d at 128;
7 see also Ci Pan v. U.S. Att’y General,
449 F.3d 408, 412-13
8 (2d Cir. 2006). Finally, contrary to Petitioners’ argument
9 that the BIA failed to consider an incident in which Benny
10 was beaten and cut with a knife, the BIA explicitly
11 referenced Benny’s testimony regarding his physical assault,
12 and reasonably concluded that this incident did not rise to
13 the level of persecution. See
Ivanishvili, 433 F.3d at 341;
14 see also Xiao Ji Chen v. U.S. Dep’t of Justice,
471 F.3d
15 315, 338 n.17 (2d Cir. 2006) (Presuming that the agency has
16 “taken into account all of the evidence before [it], unless
17 the record compellingly suggests otherwise”). Accordingly,
18 unlike those cases in which we have remanded for the agency
19 to evaluate an alien’s claim of past harm cumulatively,
20 remand here would be futile, as Hariyanto did not testify to
21 having suffered physical, mental, or economic harm, and the
22 harm to which Benny did testify was not so severe as to
23 constitute persecution. See, e.g.,
Manzur, 494 F.3d at 285-
5
1 88 (Bangladeshi applicant and her children suffered post-
2 traumatic stress disorder after applicant’s husband was
3 removed from their home and killed during a coup, and she
4 and her children were subjected to twelve years of harm,
5 including house arrest, attempted rape, death threats,
6 economic deprivation, government surveillance, denial of
7 medical care, and restriction on travel); Edimo-Doualla v.
8 Gonzales, 464 F.3d 276, 279-80 (2d Cir. 2006) (petitioner
9 was detained and beaten by Cameroonian police on five
10 occasions); Poradisova v. Gonzales,
420 F.3d 70, 74-75 (2d
11 Cir. 2005) (petitioner’ business was burned down and they
12 were subjected to years of harassment, threats, and beatings
13 in Belarus because they were Jewish). Ultimately, even
14 considering in the aggregate the harm Hariyanto and Benny
15 endured in Indonesia, their experience was insufficiently
16 severe to compel a reasonable fact-finder to conclude,
17 contrary to the agency, that they suffered past persecution,
18 8 U.S.C. § 1252(b)(4)(B). Cf.
Manzur, 494 F.3d at 285-88;
19
Edimo-Doualla, 464 F.3d at 279-80;
Poradisova, 420 F.3d at
20 74-75.
21 Moreover, because the agency reasonably determined that
22 Petitioners had not suffered past persecution, they were not
23 entitled to a presumption that they would face persecution
6
1 if returned to Indonesia. See 8 C.F.R. § 1208.16(b)(1).
2 Absent a showing of past persecution, an applicant for
3 withholding of removal must show that it is “more likely
4 than not” that she would suffer future persecution based on
5 a statutory ground if returned to the country of removal.
6 8 C.F.R. § 1208.16(b)(2). As the IJ found, the country
7 conditions evidence in the record indicated that violence
8 against Chinese and Christians in Indonesia had decreased,
9 and the Indonesian government has tried to promote ethnic
10 and religious tolerance. Indeed, the U.S. Department of
11 State’s 2008 Human Rights Practices Report for Indonesia
12 indicates that the Indonesian government “officially
13 promotes racial and ethnic tolerance,” and that “instances
14 of discrimination and harassment of ethnic Chinese continued
15 to decline compared with previous years [as] recent reforms
16 increased religious and cultural freedoms.” Thus, the IJ
17 did not err in finding that Petitioners failed to sustain
18 their burden of demonstrating a likelihood of persecution in
19 Indonesia.
20 Moreover, contrary to Petitioners’ argument, the agency
21 did not err in rejecting their “pattern or practice” claim.
22 See 8 C.F.R. § 1208.16(b)(2). As we have previously
23 determined, a petitioner failed to establish a pattern or
7
1 practice of persecution against Christians in Indonesia,
2 noting that the finding was supported by several U.S.
3 Department of State and organizational reports on conditions
4 in Indonesia. See Santoso v. Holder, 580 F.3d 110, 112 (2d
5 Cir. 2009). Here, similarly, the agency reasonably found
6 that the country conditions evidence in the record, which
7 included several U.S. Department of State and organizational
8 reports, indicated that the Indonesian government generally
9 respected religious freedom, and had instituted reforms
10 intended to promote religious and cultural tolerance.
11 Although Petitioners argue that the agency erred by relying
12 on U.S. State Department reports to the exclusion of other
13 evidence, such reports are “usually the best available
14 source of information on country conditions.” Xiao Ji Chen,
15 471 F.3d at 342 (holding that the weight afforded to State
16 Department country reports lies largely within the
17 discretion of the agency); see also
Santoso, 580 F.3d at 112
18 (finding no error in agency’s determination based on U.S.
19 State Department reports). Thus, in light of the record
20 evidence, the agency did not err in finding that Petitioners
21 failed to demonstrate a pattern or practice of persecution
22 against Christians in Indonesia. See
Santoso, 580 F.3d at
23 112.
8
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stays of
3 removal that the Court previously granted in this petition
4 are VACATED, and any pending motion for a stays of removal
5 in this petition are DISMISSED as moot. Any pending request
6 for oral argument in this petition is DENIED in accordance
7 with Federal Rule of Appellate Procedure 34(a)(2), and
8 Second Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
11
12
9
