Winardy v. Holder ( 2010 )

08-0681-ag
Winardy v. Holder
BIA
Torreh-Bayouth, IJ
A96 429 516
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY ORDER
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 5 th day of February, two thousand ten.
PRESENT:
ROSEMARY S. POOLER,
ROBERT D. SACK,
DEBRA ANN LIVINGSTON,
Circuit Judges.
______________________________________
HENDRI WINARDY,
Petitioner,
v. 08-0681-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL, 1
Respondent.
______________________________________
FOR PETITIONER: Hendri Winardy, pro se, Corona, New
York.
1
Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Attorney General Eric H. Holder, Jr. is automatically substituted for
former Attorney General Michael B. Mukasey as respondent in this case.
FOR RESPONDENT: Gregory G. Katsas, Assistant
Attorney General; Carol Federighi,
Senior Litigation Counsel; Yamileth
G. Handuber, Trial Attorney, Office
of Immigration Litigation, United
States Department of Justice,
Washington, D.C.
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 DENIED.
Hendri Winardy, a native and citizen of Indonesia,
seeks review of a January 14, 2008 order of the BIA
affirming the May 17, 2006 decision of Immigration Judge
(“IJ”) Lilliana Torreh-Bayouth, which denied his application
for asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). In re Hendri Winardy,
No. A96 429 516 (B.I.A. Jan. 14, 2008), aff’g No. A96 429
516 (Immig. Ct. Miami May 17, 2006). We assume the parties’
familiarity with the underlying facts and procedural history
in this case.
As an initial matter, we note that Winardy does not
challenge the IJ’s finding that his application for asylum
was untimely pursuant to 8 U.S.C. § 1158(a)(2)(B). We also
note that several of the arguments raised by Winardy on
appeal were raised before the IJ, but not the BIA. Thus,
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the BIA did not address those arguments, nor did it
expressly adopt the IJ’s conclusions on those points. In
such a circumstance, we may consider both the IJ’s and the
BIA’s opinions, because to do so does not affect our
ultimate conclusion. See Jigme Wangchuck v. DHS, 448 F.3d
524, 528 (2d Cir. 2006). We review the agency’s factual
findings under the substantial evidence standard. 8 U.S.C.
§ 1252(b)(4)(B). We review de novo questions of law and the
application of law to undisputed fact. Salimatou Bah v.
Mukasey, 529 F.3d 99, 110 (2d Cir. 2008). In this case, we
find that the agency did not err in denying Winardy’s
application for withholding of removal and CAT relief where
he failed to demonstrate past persecution or a likelihood of
harm if removed to Indonesia.
Persecution is defined as “a threat to the life or
freedom of, or the infliction of suffering or harm upon,
those who differ in a way regarded as offensive,” Matter of
Acosta, 19 I. & N. Dec. 211, 216 (BIA 1985), including non-
life-threatening violence and physical abuse. See Beskovic
v. Gonzales, 467 F.3d 223, 226 n.3 (2d Cir. 2006) (citing
Tian-Yong Chen v. INS, 359 F.3d 121, 128 (2d. Cir. 2004)).
In order to constitute persecution, the alleged harm must be
sufficiently severe, rising above “mere harassment.”
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Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d
Cir. 2006).
In this case, the agency did not err in finding that
Winardy failed to demonstrate that he suffered past
persecution where he testified that the only physical harm
he suffered in Indonesia occurred during scuffles with
fellow school children. See id. Additionally, the agency
reasonably noted that Winardy failed to provide details
regarding the harm he suffered as a result of the purported
destruction of his business during riots in 1995. See Xiu
Fen Xia v. Mukasey, 510 F.3d 162, 167 (2d Cir. 2007).
Moreover, the agency reasonably determined that Winardy
failed to establish that he personally suffered persecution
based on the harm inflicted on his family members. See Tao
Jiang v. Gonzales, 500 F.3d 137, 141 (2d Cir. 2007). We
decline to consider Winardy’s assertion that Islamic
militants in Indonesia hit him on the head with a gun in
1982 on account of his Chinese ethnicity and Buddhist faith
where he did not assert this alleged incident to the agency.
See 8 U.S.C. § 1252(b)(4)(A) (providing that the Court must
“decide the petition [for review] only on the administrative
record on which the order of removal is based”).
4
Ultimately, even considering in the aggregate the alleged
incidents of harm that Winardy purportedly suffered, his
experience was insufficiently severe to compel a reasonable
fact-finder to conclude, contrary to the agency, that he
suffered past persecution. See 8 U.S.C. § 1252(b)(4)(B);
see also Ivanishvili, 433 F.3d at 340-41.
As Winardy did not demonstrate that he suffered past
persecution, he was not entitled to the presumption of a
likelihood of future harm. See 8 C.F.R. § 1208.13(b)(1).
Nor did he demonstrate a likelihood that he would suffer
harm if removed to Indonesia. Indeed, Winardy’s only
testimony as to his fear of future harm was that there was
no guarantee for his safety. Moreover, the IJ reasonably
relied on the 2005 U.S. Department of State Country Report
on Human Rights Practices in Indonesia to conclude that
Winardy failed to establish a likelihood of harm on account
of his Chinese ethnicity or religion, where the report does
not indicate that the discrimination against ethnic Chinese
individuals rises to the level of persecution and discusses
only isolated incidents of religious violence. See Tu Lin
v. Gonzales, 446 F.3d 395, 400 (2d Cir. 2006).
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Thus, as the agency’s finding that Winardy failed to
establish past persecution or a likelihood of future harm
was supported by substantial evidence, see 8 U.S.C.
§ 1252(b)(4)(B), it reasonably denied his application for
withholding of removal and CAT relief. See Paul v.
Gonzales, 444 F.3d 148, 156 (2d Cir. 2006) (recognizing that
withholding of removal and CAT claims necessarily fail if
the applicant is unable to show the objective likelihood of
persecution and the factual predicate for the claims is the
same).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
6