Kuncoro v. Holder , 445 F. App'x 451 ( 2011 )

11-337-ag
Kuncoro v. Holder
BIA
Van Wyke, IJ
A099 073 432
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 17th day of November, two thousand eleven.
5
6 PRESENT:
7 ROGER J. MINER,
8 ROBERT D. SACK,
9 PETER W. HALL,
10 Circuit Judges.
11 _____________________________________
12
13 BAMBANG KUNCORO,
14 Petitioner,
15
16 v. 11-337-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: H. Raymond Fasano, New York,
24 New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Greg D. Mack, Senior
28 Litigation Counsel; Corey L.
29 Farrell, Attorney, Office of
1 Immigration Litigation, United
2 States Department of Justice,
3 Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Petitioner Bambang Kuncoro, a native and citizen of
10 Indonesia, seeks review of a December 30, 2010, order of the
11 BIA, affirming the January 14, 2009, decision of Immigration
12 Judge (“IJ”) William P. Van Wyke, which denied his
13 application for asylum, withholding of removal, and relief
14 under the Convention Against Torture (“CAT”). In re Bambang
15 Kuncoro, No. A099 073 432 (B.I.A. Dec. 30, 2010), aff’g No.
16 A099 073 432 (Immig. Ct. N.Y. City Jan. 14, 2009). We
17 assume the parties’ familiarity with the underlying facts
18 and procedural history of this case.
19 We have reviewed both the IJ’s and the BIA’s opinions
20 “for the sake of completeness.” Zaman v. Mukasey, 514 F.3d
21 233, 237 (2d Cir. 2008). The applicable standards of review
22 are well-established. See 8 U.S.C. § 1252(b)(4)(B)(2006);
23 Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
24
2
1 Kuncoro’s sole argument is that the agency erred by
2 applying the incorrect standard in assessing his pattern or
3 practice claim. In order to show a pattern or practice of
4 persecution, the threat of harm must be systemic, pervasive,
5 or organized. See Mufied v. Mukasey, 508 F.3d 88, 92 (2d
6 Cir. 2007) (discussing In re A-—, 23 I. & N. Dec. 737, 741
7 (B.I.A. 2005)). Accordingly, in determining that
8 persecution of ethnic Chinese Christians in Indonesia was
9 not “on a wide enough scale” to constitute a pattern or
10 practice of persecution, the agency applied the correct
11 standard. See id. Although the agency did not explicitly
12 state the precise standard in its decision rejecting
13 Kuncoro’s pattern or practice claim, it was not required to
14 do so. See Santoso v. Holder, 580 F.3d 110, 112 (2d Cir.
15 2009).
16 We decline Kuncoro’s invitation to remand this case to
17 the agency for a more precise statement of its pattern or
18 practice standard. While we have encouraged the agency to
19 elaborate upon the standard it has applied in analyzing such
20 claims, see Mufied, 508 F.3d at 89, where, as here, “the BIA
21 explicitly discussed the pattern or practice claim and the
22 record includes substantial documentary evidence regarding
3
1 the conditions in petitioner’s homeland, we are able to
2 reach the conclusion that the agency’s decision was not
3 erroneous[,]” Santoso, 580 F.3d at 111 n.1. However,
4 although we are able to reach the merits of Kuncoro’s
5 pattern or practice claim, we decline to do so here, because
6 he challenges only the application of the standard and not
7 the agency’s determination that the evidence shows no
8 pattern or practice of persecution of ethnic Chinese
9 Christians in Indonesia. See Yueqing Zhang v. Gonzales, 426
10 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005).
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, any stay of
13 removal that the Court previously granted in this petition
14 is VACATED, and any pending motion for a stay of removal in
15 this petition is DISMISSED as moot. Any pending request for
16 oral argument in this petition is DENIED in accordance with
17 Federal Rule of Appellate Procedure 34(a)(2), and Second
18 Circuit Local Rule 34.1(b).
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
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