Effendi v. Holder

11-2707-ag
Effendi v. Holder
BIA
Gordon-Uruakpa, IJ
A097 149 945
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 21st day of August, two thousand twelve.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 REENA RAGGI,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11
12 _____________________________________
13
14 RUSLI EFFENDI,
15 Petitioner,
16
17 v. 11-2707-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: H. Raymond Fasano, Esq., New York,
25 New York.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Russell J.E. Verby, Senior
29 Litigation Counsel; Kristen
1 Giuffreda Chapman, Attorney, Office
2 of Immigration Litigation, United
3 States Department of Justice,
4 Washington, D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Petitioner Rusli Effendi, a native and citizen of
11 Indonesia, seeks review of a June 7, 2011 order of the BIA,
12 vacating the October 17, 2003 decision of Immigration Judge
13 (“IJ”) Vivienne E. Gordon-Uruakpa granting Effendi’s
14 application for withholding of removal. In re Rusli
15 Effendi, No. A097 149 945 (B.I.A. June 7, 2011), vacating
16 No. A097 149 945 (Immig. Ct. N.Y.C. Oct. 17, 2003). We
17 assume the parties’ familiarity with the underlying facts
18 and procedural history of the case.
19 When the BIA issues an independent decision on remand
20 from this Court, we review the BIA’s decision alone. See
21 Belortaja v. Gonzales, 484 F.3d 619, 623 (2d Cir. 2007). The
22 applicable standards of review are well-established. See 8
23 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,
24 513 (2d Cir. 2009).
25
2
1 Effendi’s sole argument that the BIA ignored our
2 previous request to clarify the legal standard it uses when
3 determining whether a particular group has established a
4 pattern or practice of persecution is without merit.
5 Rather, on remand, the BIA expressly acknowledged our
6 request for a clarification of the standard that the agency
7 uses to determine whether an applicant for withholding of
8 removal has demonstrated a “pattern or practice of
9 persecution” under 8 C.F.R. § 1208.16(b)(2). The BIA
10 explained that, although there is no fixed definition of
11 what constitutes a pattern or practice of persecution, and
12 no concrete formula for assessing how systemic, pervasive,
13 or organized such persecution must be, the agency:
14 (1) relies heavily on the country conditions evidence in the
15 record, taking into account credible testimony provided by
16 the alien and/or expert witnesses where appropriate; and
17 (2) determines on a case-by-case basis whether this
18 objective evidence sufficiently establishes that the alien
19 belongs to a particular group of persons being persecuted on
20 a “systemic, pervasive, or organized basis” on account of a
21 protected ground by the government or by forces the
22 government is unable or unwilling to control. In re Rusli
3
1 Effendi, No. A097 149 945, slip op. at 2 (B.I.A. June 7,
2 2011). Accordingly, the BIA did not ignore our request for
3 clarification of the standard it uses in assessing pattern
4 or practice claims.
5 Moreover, we decline Effendi’s invitation to remand
6 this case again to the agency for a more precise statement
7 of its pattern or practice standard. While we have
8 encouraged the agency to elaborate upon the standard it has
9 applied in analyzing such claims, see Mufied v. Mukasey, 508
10 F.3d 88, 92–93 (2d Cir. 2007), we are sufficiently satisfied
11 with the BIA’s discussion of the pattern or practice
12 standard here to decide this case.
13 Where the BIA “explicitly discussed the pattern or
14 practice claim and the record includes substantial
15 documentary evidence regarding the conditions in
16 petitioner’s homeland, we are able to reach the conclusion
17 that the agency’s decision was not erroneous.” Santoso v.
18 Holder, 580 F.3d 110, 111 n.1 (2d Cir. 2009). Here, in
19 finding that Effendi failed to demonstrate a pattern or
20 practice of persecution of ethnic Chinese and Buddhists in
21 Indonesia, the BIA explicitly referenced the country
22 conditions evidence in the record, which included several
4
1 U.S. Department of State reports and newspaper articles.
2 The BIA reasonably noted that, while some of the evidence
3 indicates that ethnic and religious minorities are targeted
4 by radical groups and that the Indonesian government is, at
5 times, unable to control these groups, Petitioner’s evidence
6 does not establish that the threat of harm faced by ethnic
7 Chinese and Buddhists in Indonesia is systemic, pervasive,
8 or organized. See 8 C.F.R. § 1208.16(b)(2); Santoso, 580
9 F.3d at 111 n.1, 112. Moreover, as the BIA noted, we have
10 previously relied on similar background evidence to find no
11 pattern or practice of persecution against ethnic Chinese
12 and Christians throughout Indonesia. See Santoso, 580 F.3d
13 at 112.
14 Accordingly, because the BIA explicitly discussed
15 Effendi’s pattern or practice claim and the background
16 evidence regarding conditions in Indonesia, and reasonably
17 found that the record evidence did not indicate that ethnic
18 Chinese and Buddhists in Indonesia are persecuted on a
19 systematic, pervasive, and organized basis, substantial
20 evidence supports the BIA’s determination that Effendi
21 failed to meet his burden of proof for withholding of
22 removal. See 8 C.F.R. § 1208.16(b)(2); Santoso, 580 F.3d at23 111 n.1, 112.
5
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of
3 removal that the Court previously granted in this petition
4 is VACATED, and any pending motion for a stay of removal in
5 this petition is DISMISSED as moot. Any pending request for
6 oral argument in this petition is DENIED in accordance with
7 Federal Rule of Appellate Procedure 34(a)(2), and Second
8 Circuit Local Rule 34.1(b).
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
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