Filed: Aug. 07, 2012
Latest Update: Feb. 12, 2020
Summary: 11-3697 BIA Agustina v. Holder Vomacka, IJ A088 527 909 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
Summary: 11-3697 BIA Agustina v. Holder Vomacka, IJ A088 527 909 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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11-3697 BIA
Agustina v. Holder Vomacka, IJ
A088 527 909
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 7th day of August, two thousand twelve.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 GERARD E. LYNCH,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13
14 THEN LENNY AGUSTINA, AKA LENNY
15 AGUSTINA THEN,
16 Petitioner,
17
18 11-3697
19 v. NAC
20
21
22 ERIC H. HOLDER, JR., UNITED STATES
23 ATTORNEY GENERAL,
24 Respondent.
25 _____________________________________
26
27 FOR PETITIONER: Oleh Roman Tustaniwsky, Brooklyn,
28 N.Y.
29
30 FOR RESPONDENT: Tony West, Assistant Attorney
31 General; Carl H. McIntyre, Jr.,
32 Assistant Director; Kate D. Balaban,
33 Trial Attorney, Office of
34 Immigration Litigation, United
35 States Department of Justice,
36 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Petitioner Then Lenny Agustina, a native and citizen of
6 Indonesia, seeks review of an August 16, 2011, decision of
7 the BIA affirming the November 13, 2009, decision of
8 immigration judge (“IJ”) Alan Vomacka, denying her
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Then
11 Lenny Agustina, No. A088 527 909 (B.I.A. Aug. 16, 2011),
12 aff’g No. A088 527 909 (Immig. Ct. N.Y. City Nov. 13, 2009).
13 We assume the parties’ familiarity with the underlying facts
14 and procedural history of this case.
15 Under the circumstances of this case, we have reviewed
16 both the BIA’s and IJ’s opinions. Yun-Zui Guan v. Gonzales,
17
432 F.3d 391, 394 (2d Cir. 2005). The applicable standards
18 of review are well-established. See 8 U.S.C.
19 § 1252(b)(4)(B); Aliyev v. Mukasey,
549 F.3d 111, 115 (2d
20 Cir. 2008).
21 The agency did not err in finding that Agustina had
22 failed to establish a pattern or practice of persecution
23 against ethnic Chinese or Jehovah’s Witnesses in Indonesia.
2
1 First, the agency reasonably concluded that she failed to
2 present sufficient evidence concerning the persecution, if
3 any, of Jehovah’s Witnesses. See Jian Xing Huang v. INS,
4 421 F.3d 125, 129 (2d Cir. 2005) (per curiam) (holding that
5 a well-founded fear is not objectively reasonable if it
6 lacks “solid support” in the record and is merely
7 “speculative at best”); see also Santoso v. Holder,
580 F.3d
8 110, 112 (2d Cir. 2009) (per curiam) (upholding a BIA
9 determination that no pattern or practice of persecution of
10 ethnic Chinese or Roman Catholics existed in Indonesia).
11 Moreover, while the International Religious Freedom Report
12 2009 states that extremist groups have used violence against
13 churches and that the Indonesian government bans
14 proselytizing, it does not compel the conclusion that
15 Agustina faces government-sanctioned persecution if returned
16 to Indonesia, as it also states that the government
17 “generally respect[s] religious freedom” and the Indonesian
18 constitution provides for freedom of religion. See 8 U.S.C.
19 § 1252(b)(4)(B).
20 Further, the agency’s finding that Agustina had failed
21 to have her husband corroborate her claims was reasonable
22 because, even if her husband was unable to testify, he could
23 have submitted an affidavit. See Kyaw Zwar Tun v. INS, 445
3
1 F.3d 554, 563 (2d Cir. 2006) (“We review an IJ’s finding
2 that corroborative evidence was available for substantial
3 evidence, and will not reverse unless a reasonable trier of
4 fact is compelled to conclude that such corroborating
5 evidence is unavailable.”).
6 Agustina also argues that In re A-M-, 23 I. & N. Dec.
7 737 (BIA 2005), does not support the agency’s conclusion
8 that there is no pattern or practice of persecution of
9 ethnic Chinese and Christians in Indonesia. This argument
10 is meritless: Even though the evidence here is more recent
11 than in In re A-M-, it does not establish that there was a
12 pattern or practice of persecution. See Jian Xing Huang,
13 421 F.3d at 129. Agustina also attempts to distinguish In
14 re A-M- by relying on Mufied v. Mukasey,
508 F.3d 88 (2d
15 Cir. 2007), in which we remanded and asked the BIA to
16 clarify the In re A-M- standard. But as we have explained,
17 although the BIA continues to apply the In re A-M- standard
18 “where the BIA explicitly discusse[s] the pattern or
19 practice claim and the record includes substantial
20 documentary evidence regarding the conditions in [a]
21 petitioner’s homeland, we are able to” determine whether the
22 agency’s determination was correct without remand. Santoso,
23 580 F.3d at 112 n.1. In the present case, the agency did
4
1 not ignore Agustina’s pattern or practice claim, but
2 specifically found that, based on the documentary evidence,
3 she had “not shown that . . . a pattern or practice of
4 persecution exist[ed] for similarly situated Indonesian
5 Christians.”
6 Further, Agustina’s argument that the Ninth Circuit has
7 remanded a similar case because the BIA had failed to apply
8 a “disfavored group” analysis is unavailing, as the Ninth
9 Circuit’s disfavored group analysis standard is not binding
10 on this Court, and we have repeatedly declined to adopt that
11 analysis. See, e.g., Johanes v. Holder, 358 Fed. App’x 280,
12 282 n.2 (2d Cir. 2009); Korompis v. Holder, 334 Fed. App’x
13 443, 444 n.3 (2d Cir. 2009).
14 Accordingly, the agency reasonably found that Agustina
15 had failed to establish a well-founded fear of future
16 persecution. Because she was unable to show a well-founded
17 fear of future persecution, as needed to make out an asylum
18 claim, she was necessarily unable to meet the higher
19 standard required for withholding of removal. See Paul v.
20 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006). Lastly, because
21 Agustina did not present any particularized evidence that it
22 is more likely than not that she would be tortured in
23 Indonesia, the agency’s decision to deny CAT relief is
5
1 supported by substantial evidence. See Mu Xiang Lin v. U.S.
2 Dep’t of Justice, 432 F.3d 156, 160 (2d Cir. 2005).
3 For the foregoing reasons, the petition for review is
4 DENIED. As we have completed our review, the pending motion
5 for a stay of removal is DISMISSED as moot.
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
8
9
10
11
6
