Panelewen v. Holder ( 2011 )

09-0930-ag
Panelewen v. Holder
BIA
DeFonzo, IJ
A098 365 034
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 21st day of April, two thousand eleven.
PRESENT:
RALPH K. WINTER,
ROGER J. MINER,
ROBERT A. KATZMANN,
Circuit Judges.
_______________________________________
DEISSY PANELEWEN,
Petitioner,
v. 09-0930-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Lawrence Spivak, Jackson Heights,
N.Y.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Michael P. Lindemann,
Assistant Director; Ethan B. Kanter,
Senior Litigation Counsel, Office of
Immigration Litigation, Civil
Division, United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Deissy Panelewen, a native and citizen of
Indonesia, seeks review of a February 6, 2009 order of the
BIA affirming the June 11, 2007 decision of Immigration
Judge (“IJ”) Paul A. DeFonzo denying her application for
asylum and withholding of removal. In re Deissy Panelewen,
No. A098 365 034 (B.I.A. Feb. 6, 2009), aff’g No. A098 365
034 (Immig. Ct. N.Y. City June 11, 2007). We assume the
parties’ familiarity with the underlying facts and
procedural history of this case.
In the circumstances of this case, we review the IJ’s
decision as supplemented by the BIA’s decision. See Yan
Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
applicable standards of review are well-established. See
8 U.S.C. § 1252(b)(4)(B)(2006); Jian Hui Shao v. Mukasey,
546 F.3d 138, 157-68 (2d Cir. 2008); Salimatou Bah v.
Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
As an initial matter, the government’s argument that
Panelewen’s failure to provide citations in her brief to the
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BIA deprives us of jurisdiction “to review any new record
citations that Panelewen attempts to provide here,” Resp’t
Br. 26 n.2., is unavailing. “[W]e have never held that a
petitioner is limited to the exact contours” of his or her
argument to the agency. Gill v. INS, 420 F.3d 82, 86 (2d
Cir. 2005). Here, Panelewen is not presenting the Court
with an argument that the agency has not considered; she is
merely providing citations to the record.
Panelewen contends that she established past
persecution based on her testimony that she was caught up in
a riot and that Muslims occasionally disrupted church
services she attended. Persecution requires that the harm
suffered be sufficiently severe, rising above “mere
harassment.” Ivanishvili v. U.S. Dep't of Justice, 433 F.3d
332, 341 (2d Cir. 2006). The difference between harassment
and persecution is one of degree, which “must be assessed
with regard to the context in which the mistreatment
occurs.” Beskovic v. Gonzales, 467 F.3d 223, 226 (2d Cir.
2006)(emphasis in original).
In this case, the agency considered the context of
Panelewen’s beating and reasonably found that the
mistreatment she suffered was not sufficiently severe to
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constitute persecution because, while she testified that she
was pulled out of a car and kicked and slapped during a
riot, she was neither arrested nor detained. See id.
(noting that a “minor beating” which might not ordinarily
constitute persecution “may rise to the level of persecution
if it occurred in the context of an arrest or detention”).
Additionally, the agency reasonably concluded that the
occasional disruption of church services constituted
harassment, not persecution. See Ivanishvili, 433 F.3d at
341 (stating that “harassment” does not constitute
persecution); Nagoulko v. INS, 333 F.3d 1012, 1017 (9th Cir.
2003) (finding that the occasional interruption of church
services does not itself constitute past persecution).
Panelewen also argues that her case should be remanded
under Mufied v. Mukasey, 508 F.3d 88 (2d Cir. 2007), because
the agency failed adequately to address her claim that there
was a pattern and practice of persecution of Chinese
Christians in Indonesia. However, Mufied does not require
the agency to articulate a precise standard for evaluating
pattern and practice claims before we can review the
agency’s decision. See Santoso v. Holder, 580 F.3d 110, 112
& n.1 (2d Cir. 2009) (per curiam). And, while the IJ did
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not determine whether Panelewen established a pattern or
practice of persecution, substantial evidence supports the
BIA’s finding that she did not. As an initial matter,
Panelewen did not allege that she personally suffered any
persecution between the riot incident in 1998 and her
departure from Indonesia in 2003. Moreover, her family
continued to live in Indonesia without suffering
mistreatment rising to the level of persecution. See Melgar
de Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999) (finding
that where asylum applicant’s mother and daughters continued
to live in petitioner’s native country, claim of
well-founded fear was diminished). The agency reasonably
determined that the country conditions evidence upon which
Panelewen relied did not compel the conclusion that there is
a pattern or practice of persecution of Chinese Christians
in Indonesia. See Santoso, 580 F.3d at 112 (finding no
error in agency’s determination that petitioner did not
establish pattern or practice of persecution of Chinese
Christians in Indonesia based upon an IJ’s findings “that
religious violence in Indonesia ‘was occurring on a very
localized basis and was not countrywide,’” and taking
judicial notice that Indonesia contains “approximately 6000
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inhabited islands” and Muslims are not predominant across
the country).
Thus, the agency reasonably determined that Panelewen
did not establish her eligibility for asylum because she did
not demonstrate past persecution or a well-founded fear of
future persecution. See 8 U.S.C. § 1101(a)(42)(2006).
Because she was unable to meet her burden of demonstrating
eligibility for asylum, she necessarily failed to meet the
higher burden required to succeed on a claim for withholding
of removal. See Paul v. Gonzales, 444 F.3d 148, 155-56 (2d
Cir. 2006); Gomez v. INS, 947 F.2d 660, 665 (2d Cir. 1991).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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