Batubara v. Holder

08-5773-ag
Batubara v. Holder
BIA
Hladylowycz, IJ
A095 866 926
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 26 th day of March, two thousand ten.
5
6 PRESENT:
7 RALPH K. WINTER,
8 JOSÉ A. CABRANES,
9 REENA RAGGI,
10 Circuit Judges.
11 _______________________________________
12
13 SUNARYO BATUBARA,
14 Petitioner,
15
16 v. 08-5773-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.
1 FOR RESPONDENT: Tony West, Assistant Attorney
2 General; John S. Hogan, Senior
3 Litigation Counsel; Michael C.
4 Heyse, Trial Attorney, Office of
5 Immigration Litigation, United
6 States Department of Justice,
7 Washington, D.C.
8
9 UPON DUE CONSIDERATION of this petition for review of a

10 Board of Immigration Appeals (“BIA”) decision, it is hereby

11 ORDERED, ADJUDGED, AND DECREED that the petition for review

12 is DENIED.

13 Sunaryo Batubara, a native and citizen of Indonesia,

14 seeks review of an October 31, 2008 order of the BIA,

15 affirming the January 11, 2007 decision of Immigration Judge

16 (“IJ”) Roxanne C. Hladylowycz, which denied his application

17 for asylum, withholding of removal, and relief under the

18 Convention Against Torture (“CAT”). In re Sunaryo Batubara,

19 No. A095 866 926 (B.I.A. Oct. 31, 2008), aff’g No. A095 866

20 926 (Immig. Ct. N.Y. City Jan. 11, 2007). We assume the

21 parties’ familiarity with the underlying facts and

22 procedural history in this case.

23 Under the circumstances of this case, this Court

24 reviews the IJ’s decision as modified by the BIA decision.

25 Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522

26 (2d Cir. 2005). The applicable standards of review are

27 well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng

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1 v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

2 I. Asylum and Withholding of Removal

3 A. Past Persecution

4 T he IJ found that Batubara’s harassment and

5 discrimination did not rise to the level of persecution and

6 that any well-founded fear of future persecution was

7 undermined because: (1) he remained in Indonesia for some

8 time after his family’s store was looted; and (2) his family

9 remained in Indonesia with no reported incidents of

10 persecution. The IJ additionally found that Batubara failed

11 to establish that the Indonesian government is unwilling or

12 unable to protect him and his family.

13 In light of these findings, which Batubara does not

14 challenge, we conclude that the agency reasonably found that

15 Batubara did not suffer past persecution. See Ivanishvili

16 v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d Cir. 2006).

17 To the extent that Batubara argues that the agency failed to

18 consider the cumulative effect of the incidents of harm he

19 endured, his argument is without merit. The IJ explicitly

20 noted that she did “not find that the incidents either

21 singularly or in the cumulative would rise to the level of

22 persecution” because “the incidents were sporadic and were

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1 not so plentiful that I could find that viewed in the

2 cumulative they would rise the level of persecution.”

3 Poradisova v. Gonzales, 420 F.3d 70, 79 (2d Cir. 2005).

4 Batubara additionally argues that the IJ ignored State

5 Department reports which “demonstrated that there is

6 escalating violence against Christians in Indonesia.”

7 However, Batubara does not point to any specific evidence to

8 support his bald assertion that violence against Christians

9 has increased in Indonesia. Regardless, the IJ explicitly

10 referred to details in the reports supporting her

11 determination that the situation for Chinese Christians in

12 Indonesia had improved. See Xiao Ji Chen v. U.S. Dep't of

13 Justice, 471 F.3d 315, 338 n.17, 341-42 (2d Cir. 2006).

14 B. Pattern or Practice

15 Batubara is not required to demonstrate that he would

16 be individually singled out for persecution if he

17 demonstrates a pattern or practice of persecution of a group

18 of persons similarly situated to him on account of a

19 protected ground and establishes his own inclusion in or

20 identification with that group. See 8 C.F.R.

21 § 1208.13(b)(2)(iii). However, the BIA has found time and

22 again that there is no such pattern or practice of

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1 persecution of Chinese Christians in Indonesia. See Matter

2 of A-M-, 23 I. & N. Dec. 737, 741 (BIA 2005) (citing Lie v.

3 Ashcroft, 396 F.3d 530, 537 (3d Cir. 2005)). This Court has

4 found no error in those decisions. See, e.g., Santoso v.

5 Holder, 580 F.3d 110, 112 (2d Cir. 2009). Although the

6 agency errs by ignoring a pattern or practice claim, see

7 Mufied v. Mukasey, 508 F.3d 88, 91-93 (2d Cir. 2007), it did

8 not do so here.

9 Because Batubara based his claim for withholding of

10 removal on the same factual predicate as his asylum claim,

11 and the IJ found that he did not meet his burden of proof,

12 that claim necessarily fails. See Paul v. Gonzales, 444

13 F.3d 148, 156 (2d Cir. 2006).

14 II. CAT Relief

15 As the government argues, Batubara failed to challenge

16 before the BIA the IJ’s denial of CAT relief, and does not

17 raise any such challenge in his brief before this Court.

18 Accordingly, any challenge to the agency’s denial of CAT

19 relief is deemed abandoned. See Gui Yin Liu v. INS, 508

20 F.3d 716, 723 n.6 (2d Cir. 2007).

21 For the foregoing reasons, the petition for review is

22 DENIED. As we have completed our review, any stay of

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1 removal that the Court previously granted in this petition

2 is VACATED, and any pending motion for a stay of removal in

3 this petition is DISMISSED as moot. Any pending request for

4 oral argument in this petition is DENIED in accordance with

5 Federal Rule of Appellate Procedure 34(a)(2), and Second

6 Circuit Local Rule 34.1(b).

7 FOR THE COURT:
8 Catherine O’Hagan Wolfe, Clerk
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