Hamzah v. Lynch ( 2015 )

14-1687
Hamzah v. Lynch
BIA
Segal, IJ
A093 396 876
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 17th day of September, two thousand fifteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 DENNY CHIN,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 YOK TJIN HAMZAH,
14 Petitioner,
15
16 v. 14-1687
17 NAC
18
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: David M. Haghighi, Law Offices of
25 David M. Haghighi APC, Los Angeles,
26 CA.
27
28 FOR RESPONDENT: Joyce R. Branda, Acting Assistant
29 Attorney General; Ernesto H. Molina,
1 Jr., Assistant Director; Drew C.
2 Brinkman, Trial Attorney, Office of
3 Immigration Litigation, United
4 States Department of Justice,
5 Washington, D.C.
6
7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review is
10 DENIED.
11 Petitioner Yok Tjin Hamzah, a native and citizen of
12 Indonesia, seeks review of an April 29, 2014, decision of the
13 BIA affirming an April 17, 2012, decision of an Immigration
14 Judge (“IJ”) denying Hamzah’s application for asylum,
15 withholding of removal, and relief under the Convention Against
16 Torture (“CAT”). In re Yok Tjin Hamzah, No. A093 396 876
17 (B.I.A. Apr. 29, 2014), aff’g No. A093 396 876 (Immig. Ct. N.Y.
18 City Apr. 14, 2012). We assume the parties’ familiarity with
19 the underlying facts and procedural history in this case.
20 Under the circumstances of this case, we have reviewed the
21 IJ’s decision as supplemented by the BIA. See Yan Chen v.
22 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
23 standards of review are well established. See 8 U.S.C.
2
1 § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 F.3d 510,
2 513 (2d Cir. 2009).
3 I. Past Persecution
4 The IJ reasonably found that Hamzah did not suffer past
5 persecution. “[P]ersecution is the infliction of suffering or
6 harm upon those who differ on the basis of a protected statutory
7 ground.” Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332,
8 341 (2d Cir. 2006). “Such a definition is sufficiently general
9 to encompass ‘a variety of forms of adverse treatment, including
10 non-life-threatening violence and physical abuse, or
11 non-physical forms of harm such as the deliberate imposition
12 of a substantial economic disadvantage.’” Mei Fun Wong v.
13 Holder, 633 F.3d 64, 72 (2d Cir. 2011) (quoting Ivanishvili,
14 433 F.3d at 341). For economic harm to constitute persecution,
15 the harm must be “severe,” but an applicant “need not
16 demonstrate a total deprivation of livelihood or a total
17 withdrawal of all economic opportunity in order to demonstrate
18 harm amounting to persecution.” Matter of T-Z-, 24 I. & N. Dec.
19 163, 170-73 (BIA 2007); see also Huo Qiang Chen v. Holder, 773
20 F.3d 396, 405 (2d Cir. 2014) (applying Matter of T-Z- without
21 expressly deciding whether that case is entitled to deference).
3
1 There is no “fixed threshold for the economic harms that will
2 manifest persecution”; rather, the determination turns on what
3 impact the economic harm had on the victim. Huo Qiang Chen,
4 773 F.3d at 405.
5 The IJ reasonably found that Hamzah did not suffer past
6 persecution based on the destruction of his computer store
7 because he worked in a printing factory for four years
8 afterwards and eventually opened his own laundry business. The
9 incident, while unfortunate, did not impact Hamzah in such a
10 way as to constitute a deliberate imposition of “severe economic
11 disadvantage.” Id. (internal quotation marks omitted).
12 The IJ also reasonably found that the bombing incidents
13 Hamzah described did not constitute persecution because he was
14 never physically injured. Although Hamzah testified that he
15 and his family felt traumatized by the bombings, the record does
16 not suggest that they suffered from any long-term psychological
17 issues, or that the incidents that Hamzah asserts have
18 traumatized him were severe enough to constitute persecution
19 (even if considered cumulatively). Cf. Jorge-Tzoc v.
20 Gonzales, 435 F.3d 146, 150 (2d Cir. 2006)(per curiam). The
21 three bombing incidents occurred over the course of five years,
4
1 and while one occurred in the parking lot of the church where
2 Hamzah and his family were worshipping, the other two clearly
3 had nothing to do with Hamzah, his family or his religion.
4 I. Well-Founded Fear of Future Persecution
5 To establish eligibility for asylum, an applicant like
6 Hamzah, who has not suffered past persecution, must demonstrate
7 a well-founded fear of future persecution. See 8 U.S.C.
8 §§ 1101(a)(42), 1158(b)(1)(A); Kyaw Zwar Tun v. INS, 445 F.3d
9 554, 564 (2d Cir. 2006). To do so, he must show that he
10 "subjectively fears persecution and establish that his fear is
11 objectively reasonable." Ramsameachire v. Ashcroft, 357 F.3d
12 169, 178 (2d Cir. 2004); see also Jian Hui Shao v. Mukasey, 546
13 F.3d 138, 162 (2d Cir. 2008). There are two ways for an
14 applicant to show objective fear: (1) offering evidence that
15 he would be singled out individually for persecution, or
16 (2) proving that a pattern or practice of persecution of
17 similarly situated persons exists in his home country. Mufied
18 v. Mukasey, 508 F.3d 88, 91 (2d Cir. 2007); 8 C.F.R. §
19 1208.13(b)(2). Hamzah does not challenge the agency’s finding
20 that he did not establish a well-founded fear that he would be
21 individually targeted for persecution.
5
1 Substantial evidence supports the agency’s finding that
2 there is no pattern or practice of persecution of ethnic Chinese
3 Christians in Indonesia. "To the extent the BIA has indicated
4 that a 'pattern or practice' of persecution is one that is
5 'systemic, pervasive, or organized,' we have deemed that
6 standard 'a reasonable one' while at the same time seeking
7 clarification from the BIA as to how the standard might be
8 applied reliably." Jian Hui Shao, 546 F.3d at 150 n.6 (citing
9 Mufied, 508 F.3d at 92-93). When the agency's determination
10 that an individual did not establish a pattern or practice of
11 persecution is supported by background materials, the agency
12 has provided a "sufficient basis" for its conclusion. Santoso
13 v. Holder, 580 F.3d 110, 112 (2d Cir. 2009)(per curiam).
14 Here, the overall record, particularly the State
15 Department reports, supports the agency’s findings, as the
16 country conditions evidence shows that although there have been
17 incidents of harassment and violence, the Indonesian government
18 has attempted to address religious tensions; there is no
19 evidence that the current violence is "systemic" or
20 "pervasive." Mufied, 508 F.3d at 92-93.
6
1 Because Hamzah failed to demonstrate a well-founded fear
2 of persecution, he necessarily could not meet the higher burden
3 required for withholding of removal or CAT relief. See Lecaj
4 v. Holder, 616 F.3d 111, 119-20 (2d Cir. 2010).
5 For the foregoing reasons, the petition for review is
6 DENIED. As we have completed our review, any stay of removal
7 that the Court previously granted in this petition is VACATED,
8 and any pending motion for a stay of removal in this petition
9 is DENIED as moot. Any pending request for oral argument in
10 this petition is DENIED in accordance with Federal Rule of
11 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
12 34.1(b).
13 FOR THE COURT:
14 Catherine O=Hagan Wolfe, Clerk
7