Oroh v. Holder ( 2011 )

10-1803-ag
Oroh v. Holder
BIA
Ferris, IJ
A096 423 943
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 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
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 23rd day of August, two thousand eleven.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 REENA RAGGI,
9 PETER W. HALL,
10 Circuit Judges.
11 _____________________________________
12
13 STENLY OROH,
14 Petitioner,
15
16 v. 10-1803-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Ronald S. Salomon, New York, New
24 York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Ada E. Bosque, Senior
28 Litigation Counsel; Rebecca
29 Hoffberg, Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
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
4 is DENIED.
5 Stenly Oroh, a native and citizen of Indonesia, seeks
6 review of an April 8, 2010, order of the BIA, affirming the
7 August 13, 2008, decision of Immigration Judge (“IJ”) Noel
8 Ferris, which pretermitted his application for asylum, and
9 denied his applications for withholding of removal and
10 relief under the Convention Against Torture (“CAT”). In re
11 Oroh, No. A096 423 943 (B.I.A. Apr. 8, 2010), aff’g No. A096
12 423 943 (Immig. Ct. N.Y. City Aug. 13, 2008). We assume the
13 parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 Under the circumstances of this case, we review the
16 IJ’s decision as supplemented by the BIA. See Yan Chen v.
17 Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
18 standards of review are well-established. See 8 U.S.C. §
19 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d
20 Cir. 2009).
21 As preliminary matters, because Oroh does not challenge
22 the agency’s determination that his asylum application was
23 untimely under 8 U.S.C. § 1158(a)(2)(B), we do not address
2
1 that claim. In addition, because the BIA assumed Oroh’s
2 credibility, we do the same, see Yan Chen v. Gonzales, 417
3 F.3d at 271-72, and therefore decline to address Oroh’s
4 challenges to any adverse credibility determination of the
5 IJ, see Barnaby-King v. U.S. Dep’t of Homeland Sec., 485
6 F.3d 684, 687 (2d Cir. 2007). Accordingly, we address only
7 the agency’s denial of withholding of removal and CAT
8 relief, and conclude that the agency reasonably determined
9 that Oroh failed to sustain his burden of demonstrating his
10 eligibility for those forms of relief. See Joaquin-Porras
11 v. Gonzales, 435 F.3d 172, 181 (2d Cir. 2006).
12 Oroh argues that he established his eligibility for
13 withholding of removal based on the persecution he suffered
14 on account of his Christian religion. He testified,
15 however, that the only act of aggression he personally
16 suffered occurred in 1999, when Muslims threw rocks at him
17 while he was walking to his pastor’s house. As there is no
18 indication in the record that Oroh was physically harmed,
19 and this incident may reasonably be characterized as
20 harassment, the agency did not err in concluding that Oroh
21 did not suffer harm rising to the level of persecution. See
22 Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d
23 Cir. 2006). Moreover, because the agency reasonably
3
1 determined that he had not suffered past persecution, Oroh
2 was not entitled to a presumption that he would face
3 persecution if returned to Indonesia. See 8 C.F.R.
4 § 1208.16(b)(1).
5 Additionally, as to Oroh’s fear of future persecution,
6 the agency did not err in rejecting his “pattern or
7 practice” claim, or in finding that his testimony and
8 evidence were insufficient to establish a likelihood of
9 persecution as a Christian in Indonesia. See Santoso v.
10 Holder, 580 F.3d 110, 112 (2d Cir. 2009). Indeed, the U.S.
11 Department of State’s 2005 Country Report on Human Rights
12 Practices for Indonesia included in the record provides that
13 in some areas “[r]eligiously motivated violence . . .
14 occurred less frequently than in previous years.” Moreover,
15 in evaluating similar claims in a prior case, we have taken
16 judicial notice of the fact that “Indonesia is a nation
17 state consisting of approximately 6000 inhabited islands and
18 that, in many places, Roman Catholicism is predominant.”
19 Santoso, 580 F.3d at 112. Here, as the IJ noted, Oroh’s
20 pastor testified that when he visited Oroh’s native area in
21 Indonesia for two weeks he attended services at a
22 congregation of almost 1,000 members and did not experience
23 any problems. Thus, the agency did not err in finding that
4
1 Oroh failed to sustain his burden of demonstrating a
2 likelihood of persecution in Indonesia. See id.3 Because the agency did not err in concluding that Oroh
4 failed to establish past persecution or a likelihood of
5 persecution if returned to Indonesia, it did not err in
6 denying his applications for withholding of removal and CAT
7 relief as both claims shared the same factual predicate.
8 See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520,
9 523 (2d Cir. 2005).
10 For the foregoing reasons, the petition for review is
11 DENIED. As we have completed our review, any stay of
12 removal that the Court previously granted in this petition
13 is VACATED, and any pending motion for a stay of removal in
14 this petition is DISMISSED as moot. Any pending request for
15 oral argument in this petition is DENIED in accordance with
16 Federal Rule of Appellate Procedure 34(a)(2), and Second
17 Circuit Local Rule 34.1(b).
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
20
5