Lay v. Sessions

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