Megawati v. Holder , 350 F. App'x 540 ( 2009 )

08-4680-ag
Brata v. Holder
BIA
Hom, IJ
A 099 564 695
A 099 564 696
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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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 24 th day of November, two thousand nine.
PRESENT:
PIERRE N. LEVAL,
JOSÉ A. CABRANES,
ROBERT A. KATZMANN,
Circuit Judges.
______________________________________
SICILIA DHARMI BRATA AND HOPE KEVIN LEE,
Petitioners,
v. 08-4680-ag
NAC
ERIC H. HOLDER, JR., 1 UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
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Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr. is
automatically substituted for former Attorney General
Michael B. Mukasey as the respondent in this case.
FOR PETITIONERS: Joshua E. Bardavid, New York, N.Y.
FOR RESPONDENT: Tony West, Assistant Attorney
General, Civil Division; Barry J.
Pettinato, Assistant Director,
Office of Immigration Litigation;
Terri León-Benner, Trial Attorney,
Office of Immigration Litigation,
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.
Petitioners Sicilia Dharmi Brata and her son, Hope
Kevin Lee, both natives and citizens of Indonesia, seek
review of an August 25, 2008 order of the BIA affirming the
October 19, 2006 decision of Immigration Judge (“IJ”) Sandy
K. Hom, which denied Brata’s application for asylum,
withholding of removal, and relief under the Convention
Against Torture (“CAT”). 2 In re Sicilia Dharmi Brata and
Hope Kevin Lee, Nos. A 099 564 695, A 099 564 696 (B.I.A.
Aug. 25, 2008), aff’g Nos. A 099 564 695, A 099 564 696
(Immig. Ct. N.Y. City Oct. 19, 2006). We assume the
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Brata’s application included her son, Hope Kevin Lee,
who was eleven years old at the time of her hearing, as a
derivative applicant.
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parties’ familiarity with the underlying facts and
procedural history in this case.
When the BIA adopts the decision of the IJ and
supplements the IJ’s decision, we review the decision of the
IJ as supplemented by the BIA. See Yan Chen v. Gonzales,
417 F.3d 268, 271 (2d Cir. 2005). We review the IJ’s
factual findings under the substantial evidence standard.
See 8 U.S.C. § 1252(b)(4)(B); Manzur v. U.S. Dep’t of
Homeland Sec., 494 F.3d 281, 289 (2d Cir. 2007). We review
de novo questions of law and the application of law to
undisputed fact. Salimatou Bah v. Mukasey, 529 F.3d 99, 110
(2d Cir. 2008).
We find that the IJ did not err in denying Brata’s
application for asylum, withholding of removal, and CAT
relief. The IJ, after considering the cumulative effect of
Brata’s past harm, reasonably concluded that Brata failed to
establish past persecution due to her Chinese ethnicity or
Christian faith. While Brata argues in her brief that her
mother’s robbery and the incident in which she and her
sister were forced out of a taxi at knife-point constituted
past persecution, the IJ reasonably found that those
incidents were “criminal acts” amounting to “personal
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discrimination” and did not rise to the level of past
persecution. See Ivanishvili v. U.S. Dep’t of Justice, 433
F.3d 332, 341 (2d Cir. 2006) (to establish persecution, the
harm must be sufficiently severe, rising above “mere
harassment”). In addition, the IJ sufficiently considered
Brata’s claim that she suffered past persecution on account
of her Catholic faith, finding that Brata had never been
attacked going to and from church and that the robberies
described above were “not due to religious identification.”
See Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993) (Alito,
J.) (“[P]ersecution does not encompass all treatment that
our society regards as unfair, unjust, or even unlawful or
unconstitutional.”).
In the absence of past persecution, an applicant may
establish eligibility for asylum based on a well-founded
fear of future persecution by showing that he or she
subjectively fears persecution and that this fear is
objectively reasonable. Ramsameachire v. Ashcroft, 357 F.3d
169, 178 (2d Cir. 2004). Furthermore, an applicant is not
required to demonstrate that she would be individually
singled out for persecution if she can demonstrate a pattern
or practice of persecution of a group of persons similarly
situated to her on account of a protected ground and her own
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inclusion in or identification with that group. See
8 C.F.R. §§ 208.13(b)(2), 208.16(b)(2); Mufied v. Mukasey,
508 F.3d 88, 91 (2d Cir. 2007). Brata argues that, contrary
to the agency’s findings, she has established a well-founded
fear of future persecution based on her past harm in light
of the continuing mistreatment of ethnic Chinese and
Christians in Indonesia.
Here, the IJ considered all of the background evidence
in the record before concluding that “the Indonesian
Government has acted affirmatively and positively in
protecting the rights of the Chinese Christian communities
and has engaged in the prosecution of responsible parties in
an attempt to rout out and eliminate terrorism and criminal
acts of hate.” The IJ also found that the evidence “clearly
indicate[d] that there are safe havens in Indonesia where
Chinese Christians are free to worship and are unhindered.”
We have previously upheld the agency’s finding that no
pattern or practice of persecution exists in Indonesia,
noting that Roman Catholicism is predominant in certain
areas of that country. See Santoso v. Holder, --- F.3d ---,
No. 07-4713, 2009 WL 2914267, at *2 (2d Cir. Sept. 14,
2009). Moreover, the BIA and other circuit courts who have
considered the issue have also found that no pattern or
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practice of persecution of Chinese Christians exists in
Indonesia. See, e.g., Lolong v. Gonzales, 484 F.3d 1173,
1180-81 (9th Cir. 2007); Matter of A-—M--, 23 I. & N. Dec.
737, 741-42 (B.I.A. 2005).
While Brata argues that “the fact that [her] mother,
sister, and aunt were granted asylum based upon similar
experiences is demonstrative of the well-foundedness of
[her] fears,” the IJ observed that: (1) her relatives left
Indonesia five years earlier than she did; (2) she left
Indonesia on two occasions but returned there after each
trip; and (3) she obtained two non-immigrant visas to travel
to the U.S. but never used the first and waited one year to
use the second. Finding these facts “adverse to [Brata’s]
claim of a subjective fear,” the IJ reasonably determined
that Brata failed to establish a well-founded fear of
persecution. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471
F.3d 315, 338 (2d Cir. 2006).
As the agency did not err in concluding that Brata
failed to establish a well-founded fear of persecution if
returned to her native country, it did not err in denying
her application for asylum, withholding of removal, and CAT
relief where all three claims were based upon the same
factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156
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(2d Cir. 2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426
F.3d 520, 523 (2d Cir. 2005).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
By:___________________________
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