Lenny v. Holder , 445 F. App'x 433 ( 2011 )

10-2674-ag
Lenny v. Holder
BIA
Hom, IJ
A099 936 436/437/438
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.
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 15th day of November, two thousand eleven.
PRESENT:
JOSÉ A. CABRANES,
PETER W. HALL,
DENNY CHIN,
Circuit Judges.
_______________________________________
(NO GIVEN NAME) LENNY, EDDIE SOENTORO
LUKITO, AKA EDDIE SARENTORO LEKITO,
WINONA ARTANTI LUKITO, AKA WINNONA
ARTANTI LEKITO,
Petitioners,
v. 10-2674-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONERS: Theodore N. Cox, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Leslie McKay, Assistant
Director; Melissa K. Lott, Trial
Attorney, Office of Immigration
Litigation, United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
review is DENIED.
Lenny, Eddie Soentoro Lukito, and Winona Artanti
Lukito, natives and citizens of Indonesia, seek review of a
June 24, 2010, decision of the BIA affirming the August 12,
2008, decision of Immigration Judge (“IJ”) Sandy Hom denying
their application for asylum, withholding of removal, and
relief under the Convention Against Torture (“CAT”). In re
(No Given Name) Lenny, Eddie Soentoro Lukito, aka Eddie
Sarentoro Lekito, Winona Artanti Lukito, aka Winnona Artanti
Lekito, Nos. A099 936 436/437/438 (B.I.A. June 24, 2010),
aff’g Nos. A099 936 436/437/438 (Immig. Ct. N.Y. City Aug.
12, 2008). We assume the parties’ familiarity with the
underlying facts and procedural history of this case.
Under the circumstances of this case, we have reviewed
both the IJ’s and the BIA’s opinions “for the sake of
completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
2008) (internal quotation marks omitted). The applicable
standards of review are well-established. See 8 U.S.C. §
1252(b)(4)(B); Aliyev v. Mukasey, 549 F.3d 111, 115 (2d Cir.
2008).
Although the agency may have erred in evaluating
Lenny’s claim of past persecution by failing to consider
cumulatively the incidents Lenny experienced in Indonesia,
remand would be futile. See Manzur v. U.S. Dep’t of
Homeland Sec., 494 F.3d 281, 289-90 (2d Cir. 2007)
(providing that the agency should evaluate the cumulative
impact of an applicant’s experiences, but recognizing that
“even if an IJ’s decision contains errors, the decision will
not be vacated and remanded if doing so would be futile”).
We have recognized that a valid past persecution claim can
be based on harm other than threats to life or freedom,
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“includ[ing] non-life-threatening violence and physical
abuse,” 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)), but to amount to persecution the harm must be
sufficiently severe, rising above “mere harassment,”
Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d
Cir. 2006). Furthermore, “[w]e have emphasized that
persecution is an extreme concept that does not include
every sort of treatment our society regards as offensive.”
Mei Fun Wong v. Holder, 633 F.3d 64, 72 (2d Cir. 2011)
(internal quotation marks omitted). In this case, unlike
those cases in which we have remanded for the agency to
evaluate cumulatively an alien’s claims of past harm, Lenny
did not testify to having suffered any physical, mental, or
economic harm. See, e.g., Manzur, 494 F.3d at 285-88(Bangladeshi applicant and her children suffered post-
traumatic stress disorder after applicant’s husband was
removed from their home and killed during a coup, and she
and her children were subjected to twelve years of harm,
including house arrest, attempted rape, death threats,
economic deprivation, government surveillance, denial of
medical care, and restrictions on travel); Edimo-Doualla v.
Gonzales, 464 F.3d 276, 279-80 (2d Cir. 2006) (petitioner
was detained and beaten by Cameroonian police on five
occasions); Poradisova v. Gonzales, 420 F.3d 70, 74-75 (2d
Cir. 2005) (petitioners’ business was burned down and they
were subjected to years of harassment, threats, and beatings
in Belarus because they were Jewish). Ultimately, even
considering in the aggregate the unfortunate incidents that
Lenny endured in Indonesia, her experience was
insufficiently severe to compel a reasonable fact-finder to
conclude, contrary to the agency’s view, that she suffered
past persecution. See 8 U.S.C. § 1252(b)(4)(B); see also
Mei Fun Wong, 633 F.3d at 72; Ivanishvili, 433 F.3d at 341.
Furthermore, substantial evidence supports the agency’s
determination that Lenny failed to demonstrate a well-
founded fear of persecution in Indonesia. In order to
establish a well-founded fear of persecution, an alien must
“present credible testimony that [s]he subjectively fears
persecution and that h[er] fear is objectively reasonable.”
Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).
The agency found that Lenny’s numerous return trips to
Indonesia from vacations and business trips to China,
3
Singapore, and the United States undermined the subjective
genuineness of her claimed fear of persecution because her
return trips post-dated all but one of her claimed incidents
of persecution and she was not forced to depart from the
countries she visited. We agree with the conclusion of the
First Circuit that “[w]hile returning to one’s native
country does not automatically refute the possibility of
having a genuine fear,” a petitioner’s numerous return trips
to her home country may be substantial evidence that the
petitioner does not harbor a subjective fear of returning.
Diab v. Ashcroft, 397 F.3d 35, 42 (1st Cir. 2005). Lenny’s
return trips provide such evidence here. Additionally, the
agency did not err in questioning the objective
reasonableness of Lenny’s claimed fear of persecution based
on the fact that her parents and brother remain unharmed in
Indonesia. See Melgar de Torres v. Reno, 191 F.3d 307, 313
(2d Cir. 1999). Accordingly, the agency did not err in
finding that Lenny failed to demonstrate a well-founded fear
that she would be singled out for persecution if removed to
Indonesia,1 and reasonably denied her applications for
asylum and withholding of removal. See Paul v. Gonzales,
444 F.3d 148, 156 (2d Cir. 2006).
Finally, because Lenny waives any challenge to the
agency’s denial of her application for CAT relief, which was
based on the IJ’s finding that she could safely relocate
within Indonesia, we decline to review the agency’s decision
insofar as it denied that form of relief. See Yueqing Zhang
v. Gonzales, 426 F.3d 540, 541 n.1 (2d Cir. 2005).2
1
We do not review the agency’s alternative
determination that Lenny failed to demonstrate a pattern
or practice of persecution against Chinese Christians
because Lenny does not challenge that finding in her
brief. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541
n.1, 545 n.7 (2d Cir. 2005). We note that we have
repeatedly found no error in the agency’s determination
that there is no such pattern or practice of persecution
in Indonesia. See, e.g., Santoso v. Holder, 580 F.3d
110, 112 (2d Cir. 2009).
2
Lenny’s failure to challenge the IJ’s relocation
finding is not dispositive of her entire petition for
review because the IJ cited Lenny’s ability to relocate
4
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
removal that the Court previously granted in this petition
is VACATED, and any pending motion for a stay of removal in
this petition is DISMISSED as moot. Any pending request for
oral argument in this petition is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
only as a basis for denial of CAT relief and not with
respect to asylum and withholding.
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