12-1647
Suyono v. Sessions
BIA
Morace, IJ
A077 544 057
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.
At a stated term of the United States Court of Appeals for the
Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the 10th day
of May, two thousand seventeen.
PRESENT:
JOHN M. WALKER, JR.,
DEBRA ANN LIVINGSTON,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
SUYONO SUYONO,
Petitioner,
v. 12-1647
JEFFERSON B. SESSIONS III, UNITED
STATES ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: YIMIN CHEN, New York, NY.
FOR RESPONDENT: JOANNA L. WATSON (Benjamin C. Mizer,
Jonathan A. Robbins, on the brief),
United States Department of Justice,
Washington, DC.
UPON DUE CONSIDERATION of this petition for review of a Board
of Immigration Appeals (“BIA”) decision, it is hereby ORDERED,
ADJUDGED, AND DECREED that the petition for review is GRANTED, the
BIA’s decision is VACATED, and the case is REMANDED for further
proceedings consistent with this order.
Petitioner Suyono Suyono, a native and citizen of Indonesia,
seeks review of a March 26, 2012, decision of the BIA overturning
an April 7, 2010, decision of an Immigration Judge (“IJ”) that granted
Suyono’s application for asylum. In re Suyono Suyono, No. A077 544
057 (B.I.A. Mar. 26, 2012), rev’g No. A077 544 057 (Immigr. Ct. N.Y.C.
Apr. 7, 2010). We assume the parties’ familiarity with the
underlying facts and procedural history of this case.
In the posture of this case, we, following the BIA, assume the
credibility of the asylum applicant, and review the BIA’s
determination on that assumption. See Yan Chen v. Gonzales, 417 F.3d
268, 271 (2d Cir. 2005). Our review of the BIA’s application of legal
principles to facts is de novo. See Secaida-Rosales v. INS, 331 F.3d
297, 307 (2d Cir. 2003). For the reasons that follow, we conclude
that the BIA did not adequately explain its decision to reverse the
IJ’s grant of asylum.
First, the BIA failed to sufficiently articulate its reasoning
for finding that the mistreatment Suyono had suffered in Indonesia
did not rise to the level of persecution. Although it is true that
the BIA reviews de novo the legal question whether past instances
2
of harm rise to the level of persecution, see Hui Lin Huang v. Holder,
677 F.3d 130, 135 (2d Cir. 2012), the BIA did not offer any explanation
of why, in its view, Suyono’s mistreatment did not amount to
persecution. The absence of explanation is particularly
problematic in this context because “the difference between
harassment and persecution is necessarily one of degree that must
be decided on a case-by-case basis,” and past persecution can be
demonstrated even by “non-life-threatening violence and physical
abuse.” Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d
Cir. 2006) (internal quotation marks omitted). We also note that
the Board’s conclusory finding of no past persecution was sua sponte.
As the dissenting Board member pointed out, the Department of
Homeland Security, in its brief to the BIA, did not challenge the
IJ’s finding of past persecution. Without further explanation on
this point, therefore, we cannot meaningfully review the validity
of the legal determination made by the BIA. See Poradisova v.
Gonzales, 420 F.3d 70, 77 (2d Cir. 2005) (“[W]e require a certain
minimum level of analysis from the IJ and BIA opinions denying asylum,
and indeed must require such if judicial review is to be
meaningful.”).
Similarly, the BIA did not elaborate why it viewed the evidence
as failing to establish that the Indonesian government was unwilling
or unable to protect Suyono from violence at the hands of native
Indonesian Muslims. Rather than explaining why the IJ’s contrary
3
determination was either clearly erroneous as a factual matter or
legally incorrect, the BIA simply declared that “the record does not
establish that the Indonesian government was unable or unwilling to
protect Suyono.” CAR at 4. The BIA reasoned that the Indonesian
government was not unwilling or unable to protect Suyono because “the
police intervened to stop the attack on [Suyono] in 1992, and he filed
a police report following the December 1993 assault.” Id. However,
the BIA did not address the substance of Suyono’s testimony – the
central record evidence - regarding those assaults. Hence it is
unclear on what grounds the BIA reached its ultimate determination
that Suyono had not established the inability or unwillingness of
the Indonesian government to protect him.
Third, the BIA’s alternative determination – that, even
assuming Suyono suffered past persecution, circumstances in
Indonesia had fundamentally changed – does not obviate the need for
remand because the BIA does not appear to have applied the correct
standard of review in its analysis of this issue and, in any case,
did not sufficiently explain its rationale for reversal. See 8
C.F.R. § 1003.1(d)(3)(i) (providing for clear error review); see
also Hui Lin Huang, 677 F.3d at 134 (applying the clear error
standard). Though the IJ found that country conditions had not
substantially changed since Suyono’s departure from Indonesia in
August 1995, the BIA’s contrary analysis cited only to the very
portions of the Department of State’s 2009 Human Rights Report for
4
Indonesia (the “Country Report”) that the IJ had pointed to in support
of his decision, without explaining why the conclusions the IJ drew
from those portions of the Country Report were incorrect.
Lastly, we reject the Government’s attempt to support the BIA’s
inadequate analysis with rationales not advanced by the BIA.
“Inadequate analysis . . . [is] not excused by the fact that a
hypothetical adjudicator, applying the law correctly, might also
have denied the petition for asylum.” Poradisova, 420 F.3d at 77.
“[A] denial of immigration relief stands or falls on the reasons given
by” the IJ or BIA, since “it would usurp the role of the agency for
a reviewing court to assume a hypothetical basis for the [agency’s]
determination, even one based in the record.” Lin Zhong v. U.S.
Dep’t of Justice, 480 F.3d 104, 117 (2d Cir. 2007) (internal quotation
marks omitted).
For the foregoing reasons, the petition for review is GRANTED,
the BIA’s decision is VACATED, and the case is REMANDED for further
proceedings consistent with this order. As we have completed our
review, we now VACATE the stay of removal that this Court previously
granted pending resolution of this appeal.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
5