Fnu v. Holder

09-3283-ag
Fnu v. Holder
BIA
Balasquide, IJ
A099 928 356
A099 928 357
A099 928 358
A076 143 102
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 16 th day of June, two thousand ten.
5
6 PRESENT:
7 RALPH K. WINTER,
8 JOSÉ A. CABRANES,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11 _______________________________________
12
13 LINDA FNU, SUKIMIN THEN, MICHAEL
14 ALVIN, MICHAEL KEVIN,
15 Petitioners,
16
17 v. 09-3283-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONERS: Aaron Shapiro, The Shapiro Law Firm,
25 New York, New York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
1 General, Civil Division; Thomas B.
2 Fatouros, Senior Litigation Counsel;
3 Karen Y. Stewart, Attorney, Office
4 of Immigration Litigation, United
5 States Department of Justice,
6 Washington, D.C.
7
8 UPON DUE CONSIDERATION of this petition for review of a
9 Board of Immigration Appeals (“BIA”) decision, it is hereby
10 ORDERED, ADJUDGED, AND DECREED, that the petition for review
11 is DENIED.
12 The Petitioners, Linda Fnu, Sukimin Then, Michael
13 Alvin, and Michael Kevin, natives and citizens of Indonesia,
14 seek review of a July 13, 2009, order of the BIA affirming
15 the December 3, 2007, decision of Immigration Judge (“IJ”)
16 Javier Balasquide denying their applications for asylum,
17 withholding of removal, and relief under the Convention
18 Against Torture (“CAT”). In re Fnu, Nos. A099 928
19 356/357/358, A076 143 102 (B.I.A. July 13, 2009), aff’g Nos.
20 A099 928 356/357/358, A076 143 102 (Immig. Ct. N.Y. City
21 Dec. 3, 2007). We assume the parties’ familiarity with the
22 underlying facts and procedural history in this case.
23 Under the circumstances of this case, we review the
24 IJ’s decision as supplemented by the BIA’s decision. See
25 Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
26 The applicable standards of review are well-established.
2
1 See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562
2 F.3d 510, 513 (2d Cir. 2009).
3 I. Asylum
4 Although the petitioners correctly assert that non-life
5 threatening violence and physical abuse may rise to the
6 level of persecution, we find no error in the IJ’s
7 conclusion that the petitioners failed to establish such
8 persecution in their case. See Beskovic v. Gonzales, 467
9 F.3d 223 (2d Cir. 2006). As the IJ found: (1) Fnu failed to
10 provide any evidence that the injuries she suffered in the
11 1998 riots were permanent or serious or that she received
12 any medical treatment; and (2) Then testified that he was
13 never physically harmed. The IJ further found that the
14 harassment Then endured at the hands of native Indonesians
15 did not rise to the level of persecution. We are
16 unpersuaded by the petitioners’ argument that the IJ failed
17 to consider the incidents they described cumulatively. Cf.
18 Manzur v. U.S. Dep't of Homeland Sec., 494 F.3d 281, 290 (2d
19 Cir. 2007); Poradisova v. Gonzales, 420 F.3d 70, 79-80 (2d
20 Cir. 2005). Thus, substantial evidence supports the IJ’s
21 determination that the petitioners failed to establish past
22 persecution. See Ivanishvili v. U.S. Dep’t of Justice, 433
3
1 F.3d 332, 341 (2d Cir. 2006).
2 In the absence of past persecution, an alien can
3 demonstrate eligibility for relief if he can show that he
4 has a well-founded fear of future persecution on account of
5 a protected ground. 8 C.F.R. § 1208.13(b)(2)(i);
6 Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).
7 Here, however, substantial evidence supports the agency’s
8 conclusion that the petitioners failed to demonstrate a
9 well-founded fear of future persecution on account of their
10 Chinese ethnicity and Christian beliefs. In support of that
11 conclusion, the IJ noted that: (1) despite being harmed in
12 the 1998 riots, the petitioners did not depart Indonesia
13 permanently until 2006; (2) between 1998 and 2006, Fnu
14 reported only one other minor incident of harm and Then was
15 never physically harmed; (3) Fnu traveled to the United
16 States in 2002 for approximately 30 days and then
17 voluntarily returned to Indonesia; and (4) the petitioners
18 provided no evidence that their children were ever harmed in
19 Indonesia. 1 The petitioners do not address, much less
1
In our recent decision in Kone v. Holder, we found
that return trips to the applicant’s home country could
not alone rebut the presumption of future persecution or
support an adverse credibility determination. 596 F.3d
141, 150 (2d Cir. 2010). Here, however, the IJ
considered Fnu’s return trip to Indonesia among numerous
4
1 challenge these findings. Instead, they merely reiterate
2 the incidents of harm they referred to in arguing that they
3 suffered past persecution, asserting that these same
4 incidents show that they have a well-founded fear. In light
5 of the IJ’s findings as to past persecution, the agency
6 reasonably concluded that the petitioners failed to
7 establish a well-founded fear of future persecution. The
8 petitioners have waived any separate argument that there is
9 a pattern and practice of persecution. 8 C.F.R.
10 § 1208.13(b)(2)(iii)(A),(B). In any event, the BIA
11 reasonably found that the record did not show such a pattern
12 or practice. See Santoso v. Holder, 580 F.3d 110, 112 (2d
13 Cir. 2009) (per curiam).
14 II. Withholding of Removal and CAT Relief
15 As the government argues, the petitioners failed to
16 challenge before the BIA the IJ’s denial of withholding of
17 removal and CAT relief, and do not raise any such arguments
18 in their brief before this Court. Accordingly, any
19 challenge to the agency’s denial of withholding of removal
20 and CAT relief is deemed abandoned. See Gui Yin Liu v. INS,
other findings, including a detailed analysis of country
conditions. Moreover, because none of the petitioners
suffered past persecution, they were not entitled to a
presumption of future persecution.
5
1 508 F.3d 716, 723 n.6 (2d Cir. 2007).
2 For the foregoing reasons, the petition for review is
3 DENIED. As we have completed our review, any stay of
4 removal that the Court previously granted in this petition
5 is VACATED, and any pending motion for a stay of removal in
6 this petition is DISMISSED as moot. Any pending request for
7 oral argument in this petition is DENIED in accordance with
8 Federal Rule of Appellate Procedure 34(a)(2), and Second
9 Circuit Local Rule 34.1(b).
10 FOR THE COURT:
11 Catherine O’Hagan Wolfe, Clerk
12
6