Wargono v. Holder , 433 F. App'x 33 ( 2011 )

10-1086-ag
Wargono v. Holder
BIA
Laforest, IJ
A 097 976 253
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 2nd day of June, two thousand eleven.
5
6 PRESENT:
7 JOHN M. WALKER, JR.,
8 PIERRE N. LEVAL,
9 ROSEMARY S. POOLER,
10 Circuit Judges.
11 _______________________________________
12
13 STEFANY WARGONO,
14 Petitioner,
15
16 v. 10-1086-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Aaron Shapiro, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Michael P. Lindemann,
27 Assistant Director; Jeffrey L.
28 Menkin, Trial Attorney, Office of
29 Immigration Litigation, Civil
30 Division, United States Department
31 of Justice, Washington, D.C.
32
33
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
4 review is DENIED in part and DISMISSED in part.
5 Petitioner Stefany Wargono, a native and citizen of
6 Indonesia, seeks review of a February 26, 2010, decision of
7 the BIA, affirming the September 23, 2005, decision of
8 Immigration Judge (“IJ”) Brigitte Laforest, denying her
9 application for asylum and withholding of removal. In re
10 Stefany Wargono, No. A097 976 253 (B.I.A. Feb. 26, 2010),
11 aff’g No. A097 976 253 (Immig. Ct. N.Y. City Sept. 23,
12 2005). We assume the parties’ familiarity with the
13 underlying facts and procedural history of the case.
14 Under the circumstances of this case, we review both
15 the IJ’s and the BIA’s decisions for the sake of
16 completeness. See Zaman v. Mukasey, 514 F.3d 233, 237 (2d
17 Cir. 2008). The applicable standards of review are well-
18 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
19 Holder, 562 F.3d 510, 513 (2d Cir. 2009).
20 I. Asylum and Withholding of Removal
21 A. Past Persecution
22 The record supports the agency’s determination that
23 Wargono failed to demonstrate that she suffered past
2
1 persecution. Before the IJ, Wargono argued that she
2 suffered past persecution because: (1) her Catholic school
3 was threatened with a bomb by native Indonesians; (2) she
4 was robbed by a native Indonesian taxi driver; and (3) a
5 taxi driver intentionally began driving away while she was
6 still exiting the taxi, causing her to fall to the ground.
7 Wargono did not testify that she sustained any injuries from
8 these incidents. Nor was it unreasonable for the IJ to rule
9 that the instances of bias-based hostility she testified
10 were insufficient to constitute persecution. See Shi Liang
11 Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 305 (2d
12 Cir.2005) (en banc) (“persecution is an extreme concept that
13 does not include every sort of treatment our society regards
14 as offensive”); Ivanishvili v. U.S. Dep’t of Justice, 433
15 F.3d 332, 341 (2d Cir. 2006) (holding that past persecution
16 requires that the harm be sufficiently severe, rising above
17 “mere harassment”). Accordingly, we will not disturb the
18 agency’s conclusion that any harm Wargono suffered did not
19 constitute persecution.
20 B. Well-Founded Fear of Persecution
21 Because Wargono failed to demonstrate that she suffered
22 past persecution, she was not entitled to a presumption of a
23 well-founded fear of future persecution. See 8 C.F.R.
3
1 § 1208.13(b). The agency reasonably found that Wargono
2 failed to demonstrate a pattern or practice of persecution
3 against ethnic-Chinese Catholics in Indonesia. See Mufied
4 v. Mukasey, 508 F.3d 88, 91 (2d Cir. 2007); see also Santoso
5 v. Holder, 580 F.3d 110 (2d Cir. 2009). As the BIA found,
6 the State Department’s 2004 Country Report on Human Rights
7 Practices in Indonesia, stated that the Indonesian
8 government generally promotes racial and ethnic tolerance
9 and that discrimination and harassment of ethnic Chinese has
10 declined when compared with previous years. Furthermore,
11 the State Department’s International Religious Freedom
12 Report indicated that the Indonesian government was taking
13 measures to address the deterioration of religious
14 tolerance. Accordingly, because the agency’s determination
15 that Wargono failed to establish a well-founded fear of
16 future persecution is supported by substantial evidence, see
17 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of
18 Homeland Sec., 494 F.3d 281, 289 (2d Cir. 2007), the agency
19 did not err in denying her asylum application.
20 Because Wargono was unable to show the objective
21 likelihood of persecution needed to make out an asylum claim
22 based on her Chinese ethnicity or Catholic religion, she was
23 necessarily unable to meet the higher standard required to
4
1 succeed on a claim for withholding of removal because both
2 claims rested on the same factual predicate. See Paul v.
3 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
4 II. Convention Against Torture (“CAT”)
5 Although the BIA misstated that the IJ denied Wargono’s
6 application for CAT relief, it made no findings or other
7 comments regarding her eligibility for CAT relief, and
8 Wargono expressly waived her right to apply for CAT relief
9 before the IJ. Thus, as a statutory matter, we are without
10 jurisdiction to consider Wargono’s argument that she
11 established her eligibility for CAT relief. 8 U.S.C.
12 § 1252(d)(1).
13 For the foregoing reasons, the petition for review is
14 DENIED in part and DISMISSED in part.
15
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
18
19
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