Sunherland v. Holder

10-668-ag Sunherland v. Holder BIA Laforest, IJ A097 700 830 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 eleven. 5 6 PRESENT: 7 JOSÉ A. CABRANES, 8 ROBERT D. SACK, 9 DEBRA ANN LIVINGSTON, 10 Circuit Judges. 11 _______________________________________ 12 13 HOPELY SUNHERLAND, 14 Petitioner, 15 16 v. 10-668-ag 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _______________________________________ 22 23 FOR PETITIONER: H. Raymond Fasano, Madeo & Fasano, 24 New York, New York. 25 26 FOR RESPONDENT: Tony West, Assistant Attorney 27 General; Lyle D. Jentzer, Senior 28 Litigation Counsel; Paul F. Stone, 29 Trial Attorney, Office of 30 Immigration Litigation, Civil 31 Division, United States Department 32 of Justice, Washington, D.C. 1 UPON DUE CONSIDERATION of this petition for review of a 2 decision of the Board of Immigration Appeals (“BIA”), it is 3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for 4 review is DENIED. 5 Petitioner Hopely Sunherland, a native and citizen of 6 Indonesia, seeks review of a January 29, 2010, decision of 7 the BIA, affirming the March 5, 2008, decision of 8 Immigration Judge (“IJ”) Brigitte Laforest, denying his 9 application for asylum, withholding of removal, and relief 10 under the Convention Against Torture (“CAT”). In re Hopely 11 Sunherland, No. A097 700 830 (B.I.A. Jan. 29, 2010), aff’g 12 No. A097 700 830 (Immig. Ct. N.Y. City Mar. 5, 2008). We 13 assume the parties’ familiarity with the underlying facts 14 and procedural history of the case. 15 Under the circumstances of this case, we review both 16 the IJ’s and the BIA’s decisions for the sake of 17 completeness. See Zaman v. Mukasey, 514 F.3d 233, 237 (2d 18 Cir. 2008). The applicable standards of review are well- 19 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. 20 Holder, 562 F.3d 510, 513 (2d Cir. 2009). 21 The agency reasonably found that Sunherland, who does 22 not claim to have suffered past persecution, failed to 2 1 establish that he would be singled out for persecution based 2 on his Seventh Day Adventist religion if he returned to 3 Indonesia. See 8 C.F.R. §§ 208.13(b)(2), 208.16(b)(2); see 4 also Mufied v. Mukasey, 508 F.3d 88, 91 (2d Cir. 2007). 5 Sunherland based his claim on an incident in which he 6 witnessed two individuals ask for the pastor of a church he 7 was attending and state that they did not want services to 8 continue. Sunherland testified that he was not threatened 9 or mistreated during this event, or at any other time, and 10 that the police began guarding his church in 2000 and 11 continued to do so at the time of his hearing in 2008. As 12 Sunherland’s testimony and evidence did not indicate that he 13 would be singled out for persecution, the agency did not err 14 in finding that he failed to demonstrate an objectively 15 reasonable fear of persecution. See Jian Xing Huang v. INS, 16 421 F.3d 125, 129 (2d Cir. 2005). 17 Furthermore, the agency examined the evidence 18 Sunherland submitted and reasonably found that he failed to 19 establish a pattern or practice of persecution of Seventh 20 Day Adventists similarly situated to him. See Mufied, 508 21 F.3d at 91; see also Santoso v. Holder, 580 F.3d 110, 112 22 (2d Cir. 2009). As the BIA found, the State Department’s 3 1 2007 International Religious Freedom Report for Indonesia 2 did not indicate any suppression of Seventh Day Adventists 3 and stated that the Indonesian government generally respects 4 freedom of religion. The agency also reasonably considered 5 Sunderland’s fear of persecution to be diminished because 6 his parents and siblings, who are also practicing Seventh 7 Day Adventists, continue to live in Indonesia without 8 incurring any harassment or mistreatment. See Melgar de 9 Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999). 10 Furthermore, the agency sufficiently considered all of 11 the evidence Sunherland submitted and adequately explained 12 its findings, as, in its decision, the BIA explicitly relied 13 on and discussed the evidence in the record, including the 14 2007 State Department Report. See Wei Guang Wang v. BIA, 15 437 F.3d 270, 275 (2d Cir. 2006). 16 Lastly, Sunherland asserts that the agency erred by not 17 discussing each of the Matter of Mogharrabi elements when it 18 found that he failed to establish his eligibility for 19 asylum. See 19 I. & N. Dec. 439, 445 (BIA 1987). However, 20 although the agency did not discuss Mogharrabi, it found 21 that Sunherland failed to meet the first of the four 22 Mogharrabi elements: that he possessed a belief that a 4 1 persecutor sought to overcome by means of punishment. See 2 id. 3 Accordingly, because the agency’s determination that 4 Sunherland failed to establish a well-founded fear of future 5 persecution is supported by substantial evidence, see 6 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of 7 Homeland Sec., 494 F.3d 281, 289 (2d Cir. 2007), the agency 8 did not err in denying his asylum application. Because 9 Sunherland was unable to show the objective likelihood of 10 persecution needed to make out an asylum claim based on his 11 Seventh Day Adventist beliefs, he was necessarily unable to 12 meet the higher standard required to succeed on a claim for 13 withholding of removal because both claims rested on the 14 same factual predicate. See Paul v. Gonzales, 444 F.3d 148, 15 156 (2d Cir. 2006). Sunherland does not raise any challenge 16 to the agency’s denial of his CAT claim. 17 For the foregoing reasons, the petition for review is 18 DENIED. As we have completed our review, any stay of 19 removal that the Court previously granted in this petition 20 is VACATED, and any pending motion for a stay of removal in 21 this petition is DISMISSED as moot. Any pending request for 22 oral argument in this petition is DENIED in accordance with 5 1 Federal Rule of Appellate Procedure 34(a)(2), and Second 2 Circuit Local Rule 34.1(b). 3 FOR THE COURT: 4 Catherine O’Hagan Wolfe, Clerk 5 6 6