Aggrees v. Lynch

14-633
Aggrees v. Lynch
BIA
Videla, IJ
A088 996 328
A089 253 990
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
TO 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 11th day of August, two thousand fifteen.
5
6 PRESENT:
7 RALPH K. WINTER,
8 DENNY CHIN,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 AGGREES, NIKO,
14 Petitioners,
15
16 v. 14-633
17 NAC
18
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONERS: Joseph C. Hohenstein, Orlow, Kaplan
25 & Hohenstein, LLP, Philadelphia,
26 Pennsylvania.
27
28
1 FOR RESPONDENT: Joyce R. Branda, Acting Assistant
2 Attorney General; Margaret Kuehne
3 Taylor, Senior Litigation Counsel;
4 Kate D. Balaban, Trial Attorney,
5 Office of Immigration Litigation,
6 Civil Division, United States
7 Department of Justice, Washington,
8 D.C.
9
10 UPON DUE CONSIDERATION of this petition for review of a
11 Board of Immigration Appeals (“BIA”) decision, it is hereby
12 ORDERED, ADJUDGED, AND DECREED that the petition for review
13 is DENIED.
14 Petitioners Aggrees and Niko, natives and citizens of
15 Indonesia, seek review of a December 27, 2013, decision of
16 the BIA affirming a March 8, 2012, decision of an
17 Immigration Judge (“IJ”) denying their applications for
18 asylum, withholding of removal, and relief under the
19 Convention Against Torture (“CAT”). In re Aggrees and Niko,
20 Nos. A088 996 328/089 253 990 (B.I.A. Dec. 27, 2013), aff’g
21 Nos. A088 996 328/089 253 990 (Immig. Ct. N.Y. City Mar. 8,
22 2012). We assume the parties’ familiarity with the
23 underlying facts and procedural history in this case.
24 We have reviewed the IJ’s decision as supplemented by
25 the BIA. Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.
2
1 2005). The applicable standards of review are well
2 established. 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
3 Holder, 562 F.3d 510, 513 (2d Cir. 2009).
4 An applicant may be eligible for asylum either due to
5 past persecution or a well-founded fear of future
6 persecution. 8 U.S.C. § 1158(b)(1)(A)-(B); 8 C.F.R. §
7 1208.13(b). Because Niko does not challenge the agency’s
8 denial of asylum or assert past persecution, we address past
9 persecution only as to Aggrees. We find no error in the
10 agency’s conclusion that she failed to establish harm
11 constituting persecution. Persecution is harm that occurs
12 on account of a protected ground, in this case, ethnicity or
13 religion, see 8 U.S.C. § 1158(b)(1)(B)(i), and that rises
14 above “mere harassment,” Ivanishvili v. U.S. Dep’t of
15 Justice, 433 F.3d 332, 341 (2d Cir. 2006).
16 The agency reasonably concluded that the two most
17 serious allegations of harm did not constitute persecution.
18 As the IJ found, there is no evidence, direct or
19 circumstantial, linking Aggrees’s sexual assault or
20 kidnapping to her ethnicity or religion. Her argument that
21 the credibility finding mandates that the agency credit her
3
1 belief that the incidents were ethnically motivated is
2 misplaced. Credible testimony alone is enough to satisfy a
3 burden of proof only if it “is persuasive, and refers to
4 specific facts sufficient to demonstrate that the applicant
5 is a refugee,” i.e., that the harm was on account of a
6 protected ground. See 8 U.S.C. § 1158(b)(1)(B)(i)-(ii).
7 Here, there is no testimony or evidence linking these
8 incidents to a protected ground.
9 As the agency found, there was some evidence to link
10 the remaining allegations to a protected ground (one robbery
11 occurred near a church and, in another, perpetrators said
12 “Chinese, Chinese”), but, even cumulatively, the incidents
13 did not rise to the level of persecution. Mei Fun Wong v.
14 Holder, 633 F.3d 64, 72 (2d Cir. 2011) (Persecution is an
15 “extreme concept that does not include every sort of
16 treatment our society regards as offensive.” (internal
17 quotation marks and citation omitted)). Here, there was no
18 physical harm, only a few instances in which Agrees was
19 touched and one in which she was threatened. See Jian Qiu
20 Liu v. Holder, 632 F.3d 820, 821-22 (2d Cir. 2011) (finding
21 no error in conclusion that beating by authorities outside
4
1 of detention context with only minor injury did not rise to
2 level of persecution); see also In re A-M-, 23 I. & N. Dec.
3 737, 740 (BIA 2005) (looting of applicant’s store in 1998
4 riots and harassment and extortion by Indonesian children
5 when applicant was a child did not amount to persecution).
6 Contrary to Aggrees’s argument, the agency was not required
7 to credit the sexual assault and kidnapping in its
8 consideration of cumulative harm because those incidents had
9 no nexus to a protected ground. See Tao Jiang v. Gonzales,
10 500 F.3d 137, 141-42 (2d Cir. 2007).
11 Both Aggrees and Niko assert eligibility for asylum or
12 withholding of removal based on a pattern or practice of
13 persecution of ethnic Chinese or Christians in Indonesia.
14 Absent past persecution, there is no presumption of a well-
15 founded fear of persecution (asylum) or a likelihood of
16 persecution (withholding of removal). 8 C.F.R. §§
17 1208.13(b), 1208.16(b)(2)(i). Accordingly, to demonstrate
18 eligibility for asylum or withholding of removal, Aggrees
19 and Niko had to show persecution that would be “systemic,
20 pervasive, or organized,” and that the Indonesian government
21 would be unable or unwilling to control. Mufied v. Mukasey,
5
1 508 F.3d 88, 92-93 (2d Cir. 2007) (internal quotation marks
2 and citation omitted); see also 8 C.F.R. §§
3 1208.13(b)(2)(iii), 1208.16(b)(2)(i).
4 In addressing this issue, petitioners cite to
5 persuasive authority from other circuits about conditions in
6 Indonesia, but do not contrast the evidence presented in
7 those cases to the record in this one or cite any of the
8 country conditions evidence to explain how it showed a
9 pattern or practice of persecution. We find that the
10 agency’s denial of the pattern or practice claim is
11 supported by the record.
12 The IJ reviewed the current State Department reports
13 which showed discrimination of religious groups and isolated
14 incidents of violence against churches, theology schools, or
15 clergy, but also noted that there were 27 million Catholics
16 or Christians living in Indonesia. A 2009 State Department
17 Issue Paper further undermined the claim; it reported that
18 the Indonesian government increased prosecution of those
19 responsible for religious violence, and stated that “there
20 has been a dramatic drop in Christian-Muslim violence.” The
21 Petitioners claim of a pattern of persecution of ethnic
6
1 Chinese was even less convincing. The State Department
2 reported only that ethnic Chinese suffered discrimination.
3 Aggrees and Niko’s remaining evidence was inapposite,
4 relating mainly to bombings of hotels, not targeting of
5 Christians or ethnic Chinese. Based on this evidence, the
6 agency did not err in finding that Aggrees and Niko failed
7 to establish a pattern or practice of persecution. See
8 Santoso v. Holder, 580 F.3d 110, 112 (2d Cir. 2009) (denying
9 pattern or practice claim based on similar evidence and
10 taking “judicial notice of the fact that Indonesia is a
11 nation state consisting of approximately 6000 inhabited
12 islands and that, in many places, Roman Catholicism is
13 predominant.”). The agency was entitled to give more weight
14 to the State Department reports--which showed improving
15 conditions, discrimination (not persecution) of ethnic
16 Chinese, and only isolated incidents of violence against
17 Christians--particularly where, as here, the other evidence
18 predated those reports. See Jian Hui Shao v. Mukasey, 546
19 F.3d 138, 166 (2d Cir. 2008) (agency should consider most
20 recent State Department reports); Xiao Ji Chen v. U.S. Dep’t
21 of Justice, 471 F.3d 315, 341-42 (2d Cir. 2006) (holding
7
1 that weight to place on reports is within agency’s
2 discretion); Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d
3 Cir. 2005) (holding agency can rely on State Department
4 reports so long as it does not ignore “contradictory
5 evidence”).
6 Finally, the BIA did not abuse its discretion in
7 declining to remand for consideration of additional
8 evidence. The evidence presented on appeal was not new or
9 previously unavailable. Singh v. U.S. Dep’t of Justice, 461
10 F.3d 290, 297 (2d Cir. 2006); see also 8 C.F.R. §
11 1003.2(c)(1).
12 For the foregoing reasons, the petition for review is
13 DENIED. As we have completed our review, any stays of
14 removal that the Court previously granted in this petition
15 are VACATED, and any pending motions for stays of removal in
16 this petition are DISMISSED as moot. Any pending request
17 for oral argument in this petition is DENIED in accordance
18 with Federal Rule of Appellate Procedure 34(a)(2), and
19 Second Circuit Local Rule 34.1(b).
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
8