Yanto Suyono v. Holder

12-1434 Suyono v. Holder BIA Schoppert, IJ A 088 805 045 A 088 805 046 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 Thurgood Marshall United 3 States Courthouse, 40 Foley Square, in the City of New York, 4 on the 24th day of July, two thousand thirteen. 5 6 PRESENT: 7 ROBERT D. SACK, 8 DEBRA ANN LIVINGSTON, 9 RAYMOND J. LOHIER, JR., 10 Circuit Judges. 11 12 _______________________________________ 13 14 YANTO SUYONO, SIAUW MING YAP, 15 Petitioners, 16 17 v. 12-1434 18 NAC 19 ERIC H. HOLDER, JR., UNITED STATES 20 ATTORNEY GENERAL, 21 Respondent. 22 _______________________________________ 23 24 FOR PETITIONERS: H. Raymond Fasano, New York, New 25 York. 26 27 FOR RESPONDENT: Stuart F. Delery, Acting Assistant 28 Attorney General; Derek C. Julius, 29 Senior Litigation Counsel; Deitz P. 1 Lefort, 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 Board of Immigration Appeals (“BIA”) decision, it is hereby 8 ORDERED, ADJUDGED, AND DECREED that the petition for review 9 is DENIED. 10 Petitioners Yanto Suyono and Siauw Ming Yap, natives 11 and citizens of Indonesia, seek review of a March 12, 2012 12 decision of the BIA affirming the September 15, 2009, 13 decision of an Immigration Judge (“IJ”), which denied 14 Suyono’s application for asylum, withholding of removal, and 15 relief under the Convention Against Torture (“CAT”). In re 16 Yanto Suyono and Siauw Ming Yap, No. A088 805 045/046 17 (B.I.A. March 12, 2012), aff’g Nos. A088 805 045/046 (Immig. 18 Ct. N.Y. City Sept. 15, 2009). We assume the parties’ 19 familiarity with the underlying facts and procedural history 20 in this case. 21 Under the circumstances of this case, we have reviewed 22 the IJ’s decision as supplemented by the BIA. See Yan Chen 23 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The 24 applicable standards of review are well established. See 25 Yanqin Weng v. Holder, 562 F.3d 510, 513-14 (2d Cir. 2009). 2 1 I. Past Persecution 2 Substantial evidence supports the agency’s 3 determination that Suyono did not suffer past persecution. 4 While the petitioners claim that the agency failed to 5 consider the cumulative effect of the harm Suyono suffered 6 in Indonesia, the record indicates otherwise. The IJ 7 expressly found that the harm from the assault and other 8 incidents, even considered cumulatively, did not rise to the 9 level of persecution, and the BIA affirmed the IJ’s finding, 10 as well as his reasoning. The petitioners also argue that 11 the IJ failed to consider the harm that Yap suffered. 12 However, they did not demonstrate how the harm to Yap was 13 relevant to Suyono’s claim: the asylum application was filed 14 in Suyono’s name, while Yap was listed only as a derivative 15 applicant. Cf. Shi Liang Lin v. U.S. Dep’t of Justice, 494 16 F.3d 296, 307 (2d Cir. 2007) (en banc) (declining to extend 17 per se asylum status to spouses of forced abortions where 18 they have not directly suffered harm). 19 Moreover, considering the harm in the aggregate, the 20 agency reasonably found that Suyono failed to establish past 21 persecution, as he asserted only that on one occasion a 22 group of Muslim men came begging for donations at his 3 1 church, and, when he refused to give them enough money, 2 physically assaulted him, and on another occasion someone 3 kicked his and Yap’s car during an altercation over a 4 parking spot while they were trying to park for church. See 5 Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d 6 Cir. 2006) (noting that to constitute persecution, the 7 alleged past harm must be sufficiently severe, rising above 8 “mere harassment.”). 9 II. Pattern or Practice of Persecution 10 Absent the presumption of future persecution, the 11 agency reasonably found that Suyono failed to independently 12 establish a well-founded fear of persecution. See 8 C.F.R. 13 § 1208.16(b)(2). Although various State Department reports 14 in the record referenced sporadic incidents of religious 15 violence and ethnic tensions, they did not show a pattern or 16 practice of violence against ethnic Chinese or Christians. 17 Rather, similar to the evidence presented in Santoso v. 18 Holder, 580 F.3d 110 (2d Cir. 2009), the evidence indicates 19 widespread tolerance of various religions and that ethnic 20 Chinese play an increasingly important role in public life 21 in Indonesia. Id. at 112. 22 4 1 Furthermore, we reject the petitioners’ contention that 2 the Ninth Circuit’s opinion in Sael v. Ashcroft, 386 F.3d 3 922 (9th Cir. 2004), requires a different outcome. In that 4 opinion, the Ninth Circuit held that because ethnic Chinese 5 were a historically “disfavored group” in Indonesia, a lower 6 level of individualized risk was required to show a well- 7 founded fear of future persecution. Sael, 386 F.3d at 927. 8 Here, Suyono did not present the agency with any 9 individualized evidence suggesting that he, in particular, 10 would be subject to persecution in Indonesia. Because 11 Suyono offered no allegation of individualized harm, the 12 Ninth Circuit’s “disfavored group” analysis does not apply. 13 Id. 14 Because Suyono was unable to show that he had a well- 15 founded fear of persecution needed to make out an asylum 16 claim, he was necessarily unable to meet the higher standard 17 required to succeed on claims for withholding of removal and 18 CAT relief. See Lecaj v. Holder, 616 F.3d 111, 119-20 (2d 19 Cir. 2010). 20 For the foregoing reasons, the petition for review is 21 DENIED. As we have completed our review, any stay of 22 removal that the Court previously granted in this petition 23 is VACATED, and any pending motion for a stay of removal in 5 1 this petition is DISMISSED as moot. Any pending request for 2 oral argument in this petition is DENIED in accordance with 3 Federal Rule of Appellate Procedure 34(a)(2), and Second 4 Circuit Local Rule 34.1(b). 5 FOR THE COURT: 6 Catherine O’Hagan Wolfe, Clerk 7 8 9 6