Siswoyo v. Holder

10-1127-ag
Siswoyo v. Holder
BIA
Nelson, IJ
A098 690 726
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 28th day of September, two thousand eleven.
5
6 PRESENT:
7 JOSEPH M. MCLAUGHLIN,
8 GUIDO CALABRESI,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _______________________________________
12
13 WINOTO SISWOYO,
14 Petitioner,
15
16 v. 10-1127-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Ronald S. Salomon, New York, NY.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Douglas E. Ginsburg,
27 Assistant Director; Paul Fiorino,
28 Senior Litigation Counsel, 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 decision of the Board of Immigration Appeals (“BIA”), it is
7 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
8 review is DENIED.
9 Winoto Siswoyo, a native and citizen of Indonesia,
10 seeks review of a February 26, 2010, decision of the BIA
11 reaffirming, on remand, the September 20, 2005, decision of
12 Immigration Judge (“IJ”) Barbara A. Nelson denying his
13 application for asylum, withholding of removal, and relief
14 under the Convention Against Torture (“CAT”). In re Winoto
15 Siswoyo, No. A098 690 726 (B.I.A. Feb. 26, 2010), aff’g No.
16 A098 690 726 (Immig. Ct. N.Y. City Sept. 20, 2005). We
17 assume the parties’ familiarity with the underlying facts
18 and procedural history of this case.
19 Under the circumstances of this case, we review the
20 BIA’s decision alone. See Belortaja v. Gonzales, 484 F.3d
21 619, 622-23 (2d Cir. 2007). The applicable standards of
22 review are well-established. See 8 U.S.C. § 1252(b)(4)(B);
23 Aliyev v. Mukasey, 549 F.3d 111, 115-16 (2d Cir. 2008).
24 As an initial matter, we do not consider the agency’s
2
1 denial of CAT relief because our prior decision dismissing
2 for lack of jurisdiction Siswoyo’s unexhausted challenge to
3 the denial of that form of relief remains the law of the
4 case. See Johnson v. Holder, 564 F.3d 95, 99 (2d Cir.
5 2009). Therefore, the only issue before us is Siswoyo’s
6 challenge to the BIA’s denial of asylum and withholding of
7 removal based on the finding that he failed to demonstrate a
8 pattern or practice of persecution against Chinese
9 Christians in Indonesia.
10 In order to establish eligibility for asylum or
11 withholding of removal, an applicant need not “provide
12 evidence that there is a reasonable possibility he or she
13 would be singled out individually for persecution if . . .
14 [t]he applicant establishes that there is a pattern or
15 practice in his or her country of nationality . . . of
16 persecution of a group of persons similarly situated to the
17 applicant.” 8 C.F.R. § 1208.13(b)(2)(iii); see also
18 8 C.F.R. § 1208.16(b)(2)(i). The BIA has found time and
19 again that there is no such pattern or practice of
20 persecution against Chinese Christians in Indonesia, see,
21 e.g., Matter of A-M-, 23 I. & N. Dec. 737, 741 (BIA 2005),
22 and we have found no error in those decisions, see, e.g.,
23 Santoso v. Holder, 580 F.3d 110, 112 (2d Cir. 2009).
3
1 Likewise, in this case, the BIA did not err in determining
2 that Siswoyo failed to establish a pattern or practice of
3 persecution against Chinese Christians in Indonesia.
4 Indeed, the BIA reasonably found that although Chinese
5 Christians face incidents of harm, particularly by non-state
6 actors, and although government forces at times have
7 tolerated such illegal actions, the record did not establish
8 that there is systematic persecution of that group. See
9 Santoso, 580 F.3d at 112; see also Matter of A-M-, 23 I. &
10 N. Dec. at 741-42.
11 Because the BIA reasonably determined that Siswoyo
12 failed to establish a pattern or practice of persecution
13 against Chinese Christians in Indonesia, it did not err in
14 denying his applications for asylum and withholding of
15 removal. See 8 C.F.R. § 1208.13(b)(2)(iii); 8 C.F.R.
16 § 1208.16(b)(2)(i); see also Paul v. Gonzales, 444 F.3d 148,
17 156 (2d Cir. 2006).
18 For the foregoing reasons, the petition for review is
19 DENIED. As we have completed our review, any stay of
20 removal that the Court previously granted in this petition
21 is VACATED, and any pending motion for a stay of removal in
22 this petition is DISMISSED as moot. Any pending request for
23 oral argument in this petition is DENIED in accordance with
4
1 Federal Rule of Appellate Procedure 34(a)(2), and Second
2 Circuit Local Rule 34.1(b).
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
5
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