14-2377
Sutiono v. Lynch
BIA
Poczter, IJ
A088 479 548
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 TO 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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 2nd day of June, two thousand fifteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 ROBERT D. SACK,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 EDISON SUTIONO,
14 Petitioner,
15
16 v. 14-2377
17 NAC
18
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,*
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Joshua Bardavid, New York, N.Y.
*
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney
General Loretta E. Lynch is automatically substituted for former
Attorney General Eric H. Holder, Jr., as the Respondent in this case.
1 FOR RESPONDENT: Benjamin C. Mizer, Acting Assistant
2 Attorney General; Michelle G.
3 Latour, Deputy Director; Victor M.
4 Lawrence, Senior Litigation
5 Counsel, Office of Immigration
6 Litigation, United States
7 Department of Justice, Washington,
8 D.C.
9
10 UPON DUE CONSIDERATION of this petition for review of a
11 Board of Immigration Appeals (“BIA”) decision, it is hereby
12 ORDERED, ADJUDGED, AND DECREED that the petition for review is
13 DENIED.
14 Petitioner Edison Sutiono, a native and citizen of
15 Indonesia, seeks review of a June 3, 2014, decision of the BIA
16 affirming an April 6, 2012, decision of an Immigration Judge
17 (“IJ”) denying Sutiono’s application for asylum, withholding
18 of removal, and relief under the Convention Against Torture
19 (“CAT”). In re Edison Sutiono, No. A088 479 548 (B.I.A. June
20 3, 2014), aff’g No. A088 479 548 (Immig. Ct. N.Y. City Apr. 6,
21 2012). We assume the parties’ familiarity with the underlying
22 facts and procedural history in this case.
23 Under the circumstances of this case, we have considered
24 both the IJ’s and the BIA’s opinions “for the sake of
25 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d
26 524, 528 (2d Cir. 2006). The applicable standards of review
2
1 are well established. 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng
2 v. Holder, 562 F.3d 510, 513-14 (2d Cir. 2009). The agency did
3 not err in finding that Sutiono failed to establish past
4 persecution or a well-founded fear of persecution.
5 Past Persecution
6 We have recognized that a valid past persecution claim can
7 be based on harm other than threats to life or freedom,
8 “includ[ing] non-life-threatening violence and physical
9 abuse,” Beskovic v. Gonzales, 467 F.3d 223, 226 n.3 (2d Cir.
10 2006) (citing Tian-Yong Chen v. INS, 359 F.3d 121, 128-29 (2d
11 Cir. 2004)), but the harm must be sufficiently severe, rising
12 above “mere harassment,” Ivanishvili v. U.S. Dep’t of Justice,
13 433 F.3d 332, 341 (2d Cir. 2006). “We have emphasized that
14 persecution is an extreme concept that does not include every
15 sort of treatment our society regards as offensive.” Mei Fun
16 Wong v. Holder, 633 F.3d 64, 72 (2d Cir. 2011) (internal
17 quotation marks omitted). Here, the agency explicitly
18 considered the harm Sutiono suffered cumulatively as required,
19 see Poradisova v. Gonzales, 420 F.3d 70, 79-80 (2d Cir. 2005),
20 and reasonably concluded that, while unfortunate, the harm did
21 not constitute persecution because it did not cause him any
22 specific, significant economic or physical consequences, see
3
1 Mei Fun Wong, 633 F.3d at 72; Guan Shan Liao v. U.S. Dep’t of
2 Justice, 293 F.3d 61, 70 (2d Cir. 2002).
3 The agency also did not err in alternatively finding that
4 Sutiono failed to establish that the Indonesian government was
5 unable or unwilling to protect him. See Pan v. Holder, 777 F.3d
6 540, 543 (2d Cir. 2015) (“Private acts can . . . constitute
7 persecution if the government is unable or unwilling to control
8 such actions.”). Sutiono only reported one incident to police,
9 and he does not cite any country conditions evidence to support
10 a finding that the police do not protect ethnic Chinese
11 Indonesians.
12 Because Sutiono did not demonstrate past persecution, he
13 was not entitled to a presumption of a well-founded fear of
14 persecution. See 8 C.F.R. § 1208.13(b)(1).
15 Well-Founded Fear of Persecution
16 Absent past persecution, an applicant may establish
17 eligibility for asylum by demonstrating a well-founded fear of
18 future persecution, 8 C.F.R. § 1208.13(b)(2), which must be
19 both subjectively credible and objectively reasonable,
20 Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).
21 The applicant must show either that he would be singled out for
22 persecution or that the country of removal has a pattern or
4
1 practice of persecuting similarly situated individuals.
2 8 C.F.R. § 1208.13(b)(2)(iii). The agency did not err in
3 finding that Sutiono failed to demonstrate a well-founded fear
4 of persecution.
5 The agency reasonably questioned the objective
6 reasonableness of Sutiono’s claimed fear of persecution because
7 his parents and brother had remained unharmed in Indonesia for
8 the five years between his departure from that country and his
9 merits hearing. See Melgar de Torres v. Reno, 191 F.3d 307,
10 313 (2d Cir. 1999). Sutiono does not challenge that finding.
11 Moreover, as the IJ noted, the U.S. State Department’s 2010
12 Human Rights Report stated that the Indonesian government
13 officially promoted ethnic tolerance and that, although some
14 institutional discrimination existed, ethnic Chinese
15 Indonesians played a role in the Indonesian economy and,
16 increasingly, in Indonesian politics. The report did not
17 mention any incidents of violence against ethnic Chinese
18 Indonesians, despite elsewhere discussing violence against
19 other groups.
20 Accordingly, the agency did not err in finding that Sutiono
21 failed to demonstrate a well-founded fear of persecution. See
22 Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005)
5
1 (providing that a fear is not objectively reasonable if it lacks
2 “solid support” in the record and is merely “speculative at
3 best.”); see also Santoso v. Holder, 580 F.3d 110, 112 (2d Cir.
4 2009) (finding no error in the agency’s determination that there
5 was not a pattern or practice of persecution against ethnic
6 Chinese or Catholic Indonesians); In re A-M-, 23 I. & N. Dec.
7 737, 741-42 (BIA 2005). That finding was dispositive of
8 Sutiono’s claims for asylum, withholding of removal, and CAT
9 relief because those claims were based on the same factual
10 predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.
11 2006).
12 For the foregoing reasons, the petition for review is
13 DENIED.
14 FOR THE COURT:
15 Catherine O=Hagan Wolfe, Clerk
6