Robinson v. Lynch ( 2016 )

12-4449
Robinson v. Lynch
BIA
Ferris, IJ
A099 683 689/690
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 29th day of March, two thousand sixteen.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 DEBRA ANN LIVINGSTON,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 FNU ROBINSON, FNU EINSJAH,
14 Petitioners,
15
16 v. 12-4449
17 NAC
18 Loretta E. Lynch, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.*
21 _____________________________________
22
23 FOR PETITIONERS: Jay Ho Lee, New York, NY.
24
*
The Clerk of the Court is respectfully directed to
amend the caption to substitute Loretta E. Lynch for former
Attorney General Eric H. Holder, Jr., as the respondent in
this case, pursuant to Federal Rule of Appellate Procedure
43(c)(2).
1 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
2 Attorney General; John S. Hogan,
3 Senior Litigation Counsel; Todd J.
4 Cochran, Trial Attorney, United
5 States Department of Justice, Office
6 of Immigration Litigation,
7 Washington, D.C.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review
12 is DENIED.
13 FNU Robinson and FNU Einsjah, natives and citizens of
14 Indonesia, seek review of an October 12, 2012, order of the
15 BIA affirming the October 25, 2010, decision of an
16 Immigration Judge (“IJ”) that denied Einsjah’s application
17 for asylum and withholding of removal.1 In re FNU Robinson,
18 FNU Einsjah, Nos. A099 683 689/690 (B.I.A. Oct. 12, 2012),
19 aff’g Nos. A099 683 689/690 (Immig. Ct. N.Y. City Oct. 25,
20 2010). We assume the parties’ familiarity with the
21 underlying facts and procedural history in this case.
22 Under the circumstances of this case, we have reviewed
23 the IJ’s decision as supplemented by the BIA. See Yan Chen
1
Einsjah is the lead petitioner in this case, and her
husband Robinson is a derivative beneficiary of her asylum
application.
2
1 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
2 applicable standards of review are well established. See
3 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d
4 510, 513 (2d Cir. 2009).
5 The BIA has defined persecution as a “threat to the
6 life or freedom of, or the infliction of suffering or harm
7 upon, those who differ in a way regarded as offensive.”
8 Matter of Acosta, 19 I. & N. Dec. 211, 222 (BIA 1985),
9 overruled in part on other grounds, INS v. Cardoza-Fonseca,
10 480 U.S. 421 (1987); accord Ivanishvili v. U.S. Dep’t of
11 Justice, 433 F.3d 332, 341-42 (2d Cir. 2006). The harm must
12 be sufficiently severe, rising above “mere harassment.”
13 Ivanishvili, 433 F.3d at 341. Here, the agency reasonably
14 found that the mistreatment Einsjah endured did not
15 constitute persecution.
16 Petitioners argue that the IJ failed to consider
17 Einsjah’s experiences in the aggregate in concluding that
18 she did not suffer past persecution. However, the BIA
19 explicitly noted that, considered cumulatively, Einsjah’s
20 experiences did not rise to the level of persecution, and
21 the record supports that finding. The record shows that
3
1 when she was a child, Einsjah was “punched a lot” and that
2 boys on the school bus would touch her back and hand and not
3 apologize, and further that she witnessed the May 1998 riots
4 against ethnic Chinese in Jakarta from her home. However,
5 Einsjah was never subjected to serious physical or mental
6 harm to the degree that her life or freedom was actively
7 threatened, and, as a result, her unfortunate experiences in
8 Indonesia do not establish past persecution. See Acosta, 19
9 I. & N. Dec. at 222. Although “non-life threatening
10 violence and physical abuse” may constitute persecution as
11 well, the agency did not err in determining that the
12 instances in which Eisenjah endured physical harm did not
13 rise to the level of persecution when considered in the
14 aggregate. See Beskovic v. Gonzales, 467 F.3d 223, 225-26
15 (2d Cir. 2006); Tian-Yong Chen v. INS, 359 F.3d 121, 128 (2d
16 Cir. 2004). Moreover, the fact that Einsjah was a child
17 when some of her mistreatment occurred is only a single
18 factor to consider when determining whether she suffered
19 past persecution, and in this case, does not change the
20 analysis. See Manzur v. U.S. Dep’t of Homeland Sec., 494
21 F.3d 281, 290 (2d Cir. 2007); Jorge-Tzoc v. Gonzales, 435
22 F.3d 146, 150 (2d Cir. 2006).
4
1 Furthermore, the agency did not err in finding that
2 Einsjah failed to establish an objectively reasonable fear
3 of future persecution because she did not show that anyone
4 in Indonesia sought to harm her based either on her Chinese
5 ethnicity or her practice of Christianity, or that her
6 siblings in Indonesia, who are also ethnically Chinese
7 Christians, have been harmed in any way. See Hongsheng Leng
8 v. Mukasey, 528 F.3d 135, 138 (2d Cir. 2008); Ramsameachire
9 v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004); Melgar de
10 Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999). Einsjah
11 argues that the agency erred because it did not take into
12 account all of the background evidence she submitted;
13 however, she does not point to any evidence the agency may
14 have overlooked which was relevant to whether she had an
15 individualized well-founded fear of future persecution, and
16 we “presume that [the agency] has taken into account all of
17 the evidence . . . unless the record compellingly suggests
18 otherwise.” See Xiao Ji Chen v. U.S. Dep’t of Justice, 471
19 F.3d 315, 336 n.17 (2d Cir. 2006).
20 Because Einsjah was unable to establish either past
21 persecution or a well-founded fear of future persecution,
22 the agency did not err in denying her application for
5
1 asylum. See 8 C.F.R. § 1208.13(b); Ramsameachire, 357 F.3d
2 at 178. Moreover, because Einsjah was unable to show the
3 objective likelihood of persecution needed to make out an
4 asylum claim, she necessarily was unable to meet the higher
5 standard required to succeed on a claim for withholding of
6 removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.
7 2006).
8 For the foregoing reasons, the petition for review is
9 DENIED. As we have completed our review, any stay of
10 removal that the Court previously granted in this petition
11 is VACATED, and any pending motion for a stay of removal in
12 this petition is DISMISSED as moot. Any pending request for
13 oral argument in this petition is DENIED in accordance with
14 Federal Rule of Appellate Procedure 34(a)(2) and Second
15 Circuit Local Rule 34.1(b).
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
18
19
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