Pekoenegoro v. Holder , 439 F. App'x 75 ( 2011 )

10-3693-ag BIA
Pekoenegoro v. Holder Rohan, IJ
A097 839 070
A097 839 071
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 5th day of October, two thousand eleven.
5
6 PRESENT:
7 JOSEPH M. MCLAUGHLIN,
8 GUIDO CALABRESI,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _________________________________________
12
13 FRANGKY PEKOENEGORO, MARIA SINTYA DEWI,
14 Petitioners,
15
16 v. 10-3693-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONERS: Linda Kenepaske, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Anthony W. Norwood, Senior
27 Litigation Counsel; Micheline
28 Hershey, Attorney, United States
29 Department of Justice, Office of
30 Immigration Litigation, Washington,
31 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 Frangky Pekoenegoro and Maria Sintya Dewi, natives and
6 citizens of Indonesia, seek review of an August 17, 2010,
7 order of the BIA affirming the December 15, 2008, decision
8 of Immigration Judge (“IJ”) Patricia A. Rohan, which denied
9 their applications for asylum, withholding of removal and
10 relief under the Convention Against Torture (“CAT”). In re
11 Frangky Pekoenegoro and Maria Sintya Dewi, Nos. A097 839
12 070/071 (B.I.A. Aug. 17, 2010), aff’g Nos. A097 839 070/071
13 (Immig. Ct. N.Y. City Dec. 15, 2008). We assume the
14 parties’ familiarity with the underlying facts and
15 procedural history in this case.
16 Under the circumstances of this case, we have reviewed
17 the IJ’s decision as supplemented by the BIA’s decision.
18 See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
19 The applicable standards of review are well-established.
20 See Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
21 The only issues before us are Petitioners’ eligibility
22 for withholding of removal and CAT relief. The agency
23 reasonably determined that Pekoenegoro and Dewi failed to
24 demonstrate past persecution or a well-founded fear of
25 future persecution. As the agency found, the harm
2
1 Pekoenegoro and Dewi described — including taunts and other
2 verbal abuse, isolated physical harm, including
3 Pekoenegoro’s 1999 assault, two instances of sexual
4 harassment of Dewi, and Dewi’s detention by government
5 officers when she tried to obtain a passport — was
6 insufficient, considered either individually or in the
7 aggregate, to constitute persecution, as neither Pekoenegoro
8 nor Dewi was subjected to serious physical or mental harm.
9 See Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341-
10 42 (2d Cir. 2006) (in order for harm to constitute
11 persecution, it must be sufficiently severe, rising above
12 “mere harassment”); Matter of Acosta, 19 I. & N. Dec. 211,
13 222 (BIA 1985), overruled, in part, on other grounds, INS v.
14 Cardoza-Fonseca, 480 U.S. 421 (1987). Moreover, with the
15 exception of Dewi’s brief detention, Petitioners were
16 consistently harmed by other Indonesians, and not by, or
17 with the consent of, the Indonesian government. See Acosta,
18 19 I. & N. Dec. at 222.
19 Because Pekoenegoro and Dewi did not establish past
20 persecution, they are not entitled to a presumption of
21 future persecution. See 8 C.F.R. § 208.16(b)(1). Although
22 Petitioners argue, independent from their claim of past
23 persecution, a pattern or practice of persecution of ethnic
24 Chinese Christians, see 8 C.F.R. § 208.16(b)(2) (providing
3
1 that an applicant for asylum shall not be required to show
2 that he will be singled out individually for persecution if
3 he establishes that there is a pattern or practice of
4 persecution of a group of similarly situated persons);
5 Mufied v. Mukasey, 508 F.3d 88, 91 (2d Cir. 2007),
6 substantial evidence supports the BIA’s determination that
7 Pekoenegoro and Dewi did not establish a pattern or practice
8 in Indonesia, see Santoso v. Holder, 580 F.3d 110 (2d Cir.
9 2009).
10 Because Pekoenegoro and Dewi did not establish past
11 persecution, a likelihood of future persecution, or a
12 pattern or practice of persecution, the agency did not err
13 in denying their application for withholding of removal.
14 See 8 C.F.R. § 208.16(b)(1), (2). Moreover, because
15 Petitioners’ CAT claim was based on the same factual
16 predicate, they similarly failed to meet their burden for
17 that form of relief. See Xue Hong Yang v. U.S. Dep’t of
18 Justice, 426 F.3d 520, 522-23 (2d Cir. 2005).
19 For the foregoing reasons, the petition for review is
20 DENIED. As we have completed our review, any stay of
21 removal that the Court previously granted in this petition
22 is VACATED, and any pending motion for a stay of removal in
23 this petition is DISMISSED as moot. Any pending request for
24 oral argument in this petition is DENIED in accordance with
4
1 Federal Rule of Appellate Procedure 34(a)(2), and Second
2 Circuit Local Rule 34.1(b).
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
5
5