Njoo v. Holder

10-977-ag
Njoo v. Holder
BIA
Opaciuch, IJ
A095 367 167
A098 485 464
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 20 th day of January, two thousand eleven.
5
6 PRESENT: GUIDO CALABRESI,
7 ROBERT A. KATZMANN,
8 GERARD E. LYNCH,
9 Circuit Judges.
10 ______________________________________
11
12 EDDY SOEWASETIO NJOO, JENNY SETIAWATI
13 BONG,
14 Petitioners,
15
16 10-977-ag
17 v. NAC
18
19
20 ERIC H. HOLDER, JR., UNITED STATES
21 ATTORNEY GENERAL,
22 Respondent. *
23 ______________________________________
24
25 FOR PETITIONERS: Jack Herzig, Glenside, Pennsylvania.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; Anthony C. Payne, Senior
29 Litigation Counsel; Tiffany L.
*
1 The Clerk of Court is instructed to amend the
2 official caption in this case to conform to the listing
3 of the parties above.
1 Walters, Trial Attorney, Office of
2 Immigration Litigation, Civil
3 Division, United States Department
4 of Justice, Washington, D.C.
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review is
8 DENIED.
9 Petitioners Eddy Soewasetio Njoo and Jenny Setiawati
10 Bong, natives and citizens of Indonesia, seek review of a
11 February 26, 2010, decision of the BIA reaffirming, on remand,
12 the March 24, 2005, decision of Immigration Judge (“IJ”) Adam
13 Opaciuch denying their applications for withholding of
14 removal. 1 In re Njoo, No. A095 367 167 / A098 485 464 (B.I.A.
15 Feb. 26, 2010), aff’g No. A095 367 167 / A098 485 464 (Immig.
16 Ct. N.Y. City Mar. 24, 2005). We assume the parties’
17 familiarity with the underlying facts and procedural history
18 of the case.
1
Despite some ambiguity as to whether both Njoo and
Bong – as opposed to only Njoo – petitioned this Court
for review, on balance the case initiation documents and
subsequent briefing indicate that both petitioners sought
review of the BIA’s decision. In any event, Bong cannot
be prejudiced by this Court unnecessarily resolving her
removability along with Njoo’s: she is now out of time to
file her own petition for review and any claims that she
could have raised in a separate petition necessarily
would have been duplicative of those raised in this case.
2
1 Under the circumstances of this case, we review the BIA’s
2 decision alone. See Belortaja v. Gonzales, 484 F.3d 619, 622-
3 23 (2d Cir. 2007). The applicable standards of review are
4 well established. See 8 U.S.C. § 1252(b)(4)(B); see also
5 Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
6 The agency did not err in determining that Njoo and Bong
7 failed to establish that a pattern or practice of persecution
8 against Chinese Christians exists in Indonesia, reasonably
9 relying on country conditions evidence in the record to find
10 that although Chinese Christians face incidents of harm,
11 particularly by non-state actors, and although government
12 forces at times tolerate such illegal actions, the record did
13 not establish that there is systematic, pervasive, or
14 organized persecution. See Santoso v. Holder, 580 F.3d 110,
15 112 (2d Cir. 2009). 2
2
1 We note in passing the BIA’s assertion that Santoso
2 held that the Board “only erred where [it has] failed to
3 consider if there exists a pattern or practice of
4 persecuting similarly situated persons in the applicable
5 country.” In re Njoo, No. A095 367 167 / A098 485 464
6 (B.I.A. Feb. 26, 2010) (emphasis added). Santoso,
7 however, held only that the Board did not err where it
8 successfully performed such an analysis; it announced no
9 holding regarding other ways the Board might err in
10 pattern or practice cases.
3
1 While Njoo and Bong argue that the agency did not make an
2 individualized determination on the basis of documentary
3 evidence contained in the record, the record does not suggest
4 that the agency failed either to take into account all
5 evidence presented or to base its decision on that evidence,
6 particularly given that the BIA explicitly referenced various
7 materials submitted as background evidence in its decision.
8 See Gao v. Mukasey, 508 F.3d 86, 88 (2d Cir. 2007)(remanding
9 to the BIA only after concluding that it failed to pay “any
10 attention at all” to petitioner’s documentary evidence).
11 Similarly, while Njoo and Bong assert that the BIA
12 impermissibly engaged in independent fact-finding, the BIA did
13 not engage in additional fact-finding, but rather upheld the
14 IJ’s findings that religious and ethnic violence had decreased
15 and that the government generally respected and promoted
16 religious freedom and ethnic tolerance. See 8 C.F.R.
17 §§ 1003.1(d)(3)(iv), 1003.3(f); Xian Tuan Ye v. DHS, 446 F.3d
18 289, 296 (2d Cir. 2006).
19 The BIA has asserted that claims of a pattern or practice
20 of persecution should be evaluated with reference to whether
21 the alleged persecution is “systematic, pervasive, or
22 organized,” In re A—M—, 23 I. & N. Dec. 737, 741 (BIA 2005)
4
1 (internal quotations omitted), but has yet to explain how we
2 should apply this standard, see Santoso, 580 F.3d at 112 n.1.
3 Nor has the Board applied that standard in the present case.
4 However, as in Santoso, while we urge the BIA to begin
5 applying and explaining the standard it has chosen, we are
6 nonetheless “able to reach the conclusion that the agency’s
7 decision was not erroneous” because the BIA “explicitly
8 discussed the pattern or practice claim and the record
9 includes substantial documentary evidence regarding the
10 conditions in petitioners’ homeland . . . .” Id.11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, any stay of removal
13 that the Court previously granted in this petition is VACATED,
14 and any pending motion for a stay of removal in this petition
15 is DISMISSED as moot. Any pending request for oral argument
16 in this petition is DENIED in accordance with Federal Rule of
17 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
18 34.1(b).
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
21
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