09-1069-ag
Mulyono v. Holder
BIA
Nelson, IJ
A097-586-583
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 10 th day of May, two thousand ten.
PRESENT:
ROBERT D. SACK,
REENA RAGGI,
GERARD E. LYNCH,
Circuit Judges.
_______________________________________
MARTHA MULYONO,
Petitioner,
v. 09-1069-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: Vincent S. Wong, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General, Thomas B. Fatouros, Senior
Litigation Counsel, Arthur L. Rabin,
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
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED that the petition for
review is DENIED in part and DISMISSED in part.
Petitioner Martha Mulyono, a native and citizen of
Indonesia, seeks review of a February 23, 2009 order of the
BIA, affirming the February 14, 2007 decision of Immigration
Judge (“IJ”) Barbara A. Nelson, denying her application for
asylum and withholding of removal. In re Martha Mulyono,
No. A097 586 583 (B.I.A. Feb. 23, 2009), aff’g No. A097 586
583 (Immig. Ct. N.Y. City Feb. 14, 2007). We assume the
parties’ familiarity with the facts and the record of prior
proceedings, which we reference only as necessary to explain
our decision.
Under the circumstances of this case, we review both the
BIA’s and IJ’s opinions. See Yan Chen v. Gonzales, 417 F.3d
268, 271 (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).
1. Asylum and Withholding of Removal
We identify no error in the agency’s conclusion that,
even when considered cumulatively, the past harms Mulyono
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alleged did not rise to the level of persecution. See
Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 340-41
(2d Cir. 2006) (noting that harm must be sufficiently severe
and rise above “mere harassment” to be deemed persecution);
Poradisova v. Gonzales, 420 F.3d 70, 79-80 (2d Cir. 2005);
see also Lie v. Ashcroft, 396 F.3d 530, 535-36 (3d Cir. 2005)
(holding that isolated criminal attacks do not constitute
persecution); Gormley v. Ashcroft, 364 F.3d 1172, 1177 (9th
Cir. 2004) (same); Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.
1993) (“[P]ersecution does not encompass all treatment that
our society regards as unfair, unjust, or even unlawful or
unconstitutional.”).
Having failed to demonstrate that she suffered past
persecution, Mulyono was not entitled to a presumption of a
well-founded fear or likelihood of future persecution. See 8
C.F.R. §§ 1208.13(b)(1), 1208.16(b)(1). The BIA reasonably
concluded that Mulyono did not satisfy her burden of
establishing such a fear or likelihood. In particular, it
noted that the 2005 Country Report for Indonesia indicated
that the government officially promotes racial and ethnic
tolerance and that incidents of discrimination and harassment
have declined in comparison to previous years. It also noted
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that because Mulyono’s mother and siblings apparently lived
and worked in Indonesia without incident, it was reasonable
to conclude that Mulyono could relocate within Indonesia to
avoid the harms that she feared. See Melgar de Torres v.
Reno, 191 F.3d 307, 313 (2d Cir. 1999) (finding claim of
well-founded fear weakened where asylum applicant’s mother
and daughters continued to live in applicant’s native country
without harm). In sum, substantial evidence supports the
agency’s determination that Mulyono lacked a well-founded
fear of persecution.
While Mulyono contends that the agency failed adequately
to consider the evidence she submitted, the agency need not
“expressly parse or refute on the record each individual
argument or piece of evidence offered by the petitioner” to
satisfy its obligation to consider all relevant evidence.
Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006)
(internal quotation marks omitted). Instead, “we presume
that [the agency] has taken into account all of the evidence
before [it], unless the record compellingly suggests
otherwise.” Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d
315, 338 n.17 (2d Cir. 2006). Here, there is no indication
that the agency failed to consider any evidence in the
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record. See Guan Shan Liao v. U.S. Dep’t of Justice, 293
F.3d 61, 68 (2d Cir. 2002). Accordingly, the BIA properly
concluded that Mulyono did not meet her burden of proof in
establishing her eligibility for asylum and withholding of
removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.
2006).
2. CAT Relief
Because Mulyono failed to challenge the IJ’s denial of
CAT relief before the BIA, her CAT claim is unexhausted. We
therefore lack jurisdiction to consider any argument that she
is entitled to such relief. See 8 U.S.C. § 1252(d)(1).
3. Conclusion
For the foregoing reasons, the petition for review is
DENIED in part and DISMISSED in part. 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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