16-50
Lay v. Sessions
BIA
Balasquide, IJ
A205 221 932
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 21st day of June, two thousand seventeen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 BARRINGTON D. PARKER,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 DICKY ALEXANDER LAY,
14 Petitioner,
15
16 v. 16-50
17 NAC
18 JEFFERSON B. SESSIONS III, UNITED
19 STATES ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Armin A. Skalmowski, Alhambra, CA.
24
25 FOR RESPONDENT: Benjamin Mizer, Principal Deputy
26 Assistant Attorney General; Douglas
27 Ginsburg, Assistant Director;
28 Timothy Bo Stanton, Trial Attorney,
29 Office of Immigration Litigation,
30 United States Department of Justice,
31 Washington, DC.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review is
4 DENIED.
5 Petitioner Dicky Alexander Lay, a native and citizen of
6 Indonesia, seeks review of a December 9, 2015, decision of the
7 BIA, affirming a May 21, 2014, decision of an Immigration Judge
8 (“IJ”) denying Lay’s application for asylum, withholding of
9 removal, and relief under the Convention Against Torture
10 (“CAT”). In re Dicky Alexander Lay, No. A205 221 932 (B.I.A.
11 Dec. 9, 2015), aff’g No. A205 221 932 (Immig. Ct. N.Y. City May
12 21, 2014). We assume the parties’ familiarity with the
13 underlying facts and procedural history in this case.
14 Under the circumstances of this case, we have reviewed the
15 decisions of both the BIA and the IJ “for the sake of
16 completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d
17 524, 528 (2d Cir. 2006). The applicable standards of review
18 are well established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin
19 Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
20 I. Past Persecution
21 We find no error in the agency’s conclusion that Lay’s past
22 harm did not rise to the level of persecution. Persecution can
23 be harm other than threats to life or freedom, including
2
1 non-life-threatening violence and physical abuse, Beskovic v.
2 Gonzales, 467 F.3d 223, 226 n.3 (2d Cir. 2006), but the harm
3 must be sufficiently severe to rise above “mere harassment,”
4 Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d Cir.
5 2006). In evaluating a claim of persecution, the agency is
6 required to consider the “cumulative significance” of the
7 alleged incidents as opposed to the severity of each incident
8 in isolation. Poradisova v. Gonzales, 420 F.3d 70, 79-80 (2d
9 Cir. 2005).
10 The agency reasonably concluded that Lay’s past
11 experiences in Indonesia did not amount to persecution. Id.
12 Lay identified five incidents of past harm spanning a ten-year
13 period and ranging from a bloody nose from elementary school
14 classmates and being spat on, to an attack on his temple and
15 a physical assault. Although these are clearly regrettable
16 incidents, we agree with the agency’s conclusion that, even
17 cumulatively, the incidents lacked the severity to amount to
18 persecution. See Mei Fun Wong v. Holder, 633 F.3d 64, 72 (2d
19 Cir. 2011) (“We have emphasized that persecution is an extreme
20 concept that does not include every sort of treatment our
21 society regards as offensive.” (internal quotation marks and
22 citations omitted)); Jian Qiu Liu v. Holder, 632 F.3d 820, 822
23 (2d Cir. 2011) (finding no error in BIA’s conclusion that
3
1 applicant who was beaten prior to a two-day detention did not
2 establish persecution because the injuries “required no formal
3 medical attention and had no lasting physical effect”).
4 II. Well-Founded Fear of Future Persecution
5 Nor do we find any error in the agency’s conclusion that
6 Lay failed to demonstrate a well-founded fear of persecution.
7 To do so, an applicant must show “that he subjectively fears
8 persecution” and that “his fear is objectively reasonable.”
9 Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).
10 “An asylum applicant can show a well-founded fear of future
11 persecution in two ways: (1) by demonstrating that he or she
12 ‘would be singled out individually for persecution’ if
13 returned, or (2) by proving the existence of a ‘pattern or
14 practice in [the] . . . country of nationality . . . of
15 persecution of a group of persons similarly situated to the
16 applicant’ and establishing his or her ‘own inclusion in, and
17 identification with, such group.’” Y.C. v. Holder, 741 F.3d
18 324, 332 (2d Cir. 2013) (quoting 8 C.F.R. § 1208.13(b)(2)(iii)).
19 Lay argues that there is a pattern or practice of
20 persecution of ethnic Chinese Buddhists in Indonesia. The
21 agency reasonably concluded that Lay failed to meet his burden
22 of establishing a pattern or practice. He presented no
23 evidence that ethnic Chinese Indonesians who practice Buddhism
4
1 face systemic persecution in Indonesia. See Jian Xing Huang
2 v. INS, 421 F.3d 125, 129 (2d Cir. 2005); In re A-M-, 23 I. &
3 N. Dec. 737, 741 (B.I.A. 2005) (defining pattern or practice
4 as the “systemic or pervasive” persecution of a group); see also
5 Mufied v. Mukasey, 508 F.3d 88, 92-93 (2d Cir. 2007) (accepting
6 BIA’s standard as reasonable, while noting that “[w]ithout
7 further elaboration [the standard does not make clear] how
8 systemic, pervasive, or organized persecution must be before
9 the Board would recognize it as a pattern or practice”).
10 Contrary to Lay’s representation that the record
11 “overwhelmingly shows that the Muslims target religious and
12 ethnic minorities in Indonesia,” the record contains one
13 article from 2010 that discusses discrimination against
14 Chinese-Indonesians, and two articles that report on the
15 European Parliament’s condemnation of violence in Indonesia
16 against religious minorities. Otherwise, the evidence does
17 not identify incidents of persecution (let alone a pattern of
18 practice of persecution) against ethnic Chinese or practicing
19 Buddhists. Rather, some articles describe a rise of
20 “Anti-Christian extremism in Indonesia” and attacks on churches
21 by radical Islamist groups. Other articles describe clashes
22 between Muslims and Christians regarding the construction of
23 a church in the Java province and instances of
5
1 Muslim-against-Muslim violence. Accordingly, the agency did
2 not err in determining that Lay failed to demonstrate a pattern
3 and practice of persecution of Chinese Buddhists in Indonesia.
4 See Santoso v. Holder, 580 F.3d 110, 112 (2d Cir. 2009) (denying
5 petition where agency considered background materials and
6 rejected pattern or practice claim regarding ethnic Chinese in
7 Indonesia).
8 For the foregoing reasons, the petition for review is
9 DENIED. As we have completed our review, any stay of removal
10 that the Court previously granted in this petition is VACATED,
11 and any pending motion for a stay of removal in this petition
12 is DISMISSED as moot. Any pending request for oral argument
13 in this petition is DENIED in accordance with Federal Rule of
14 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
15 34.1(b).
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
6