Bong v. Holder

12-1846
Bong v. Holder
BIA
Owens, IJ
A098 927 420
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 12th day of June, two thousand thirteen.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 DEBRA ANN LIVINGSTON,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 CINDY TAMARA BONG,
14 Petitioner,
15
16 v. 12-1846
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: David A. Bredlin, New York, N.Y.
24
25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
26 Attorney General; William C. Peachy,
27 Assistant Director; Jonathan
28 Robbins, Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
4 review is DISMISSED in part and DENIED in part.
5 Petitioner Cindy Tamara Bong, a native and citizen of
6 Indonesia, seeks review of an April 13, 2012, order of the
7 BIA affirming the May 10, 2010, decision of an Immigration
8 Judge (“IJ”), which denied Bong’s application for asylum,
9 withholding of removal, and relief under the Convention
10 Against Torture (“CAT”). In re Cindy Tamara Bong, No. A098
11 927 420 (B.I.A. Apr. 13, 2012), aff’g No. A098 927 420
12 (Immig. Ct. N.Y.C. May 10, 2010). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 We review the decision of the IJ as supplemented by the
16 BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.
17 2005). The applicable standards of review are well
18 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
19 Holder, 562 F.3d 510, 513 (2d Cir. 2009).
20 Initially, we lack jurisdiction to review the agency’s
21 pretermission of Bong’s asylum application as untimely
22 because her assertion that there were changed conditions in
23 Indonesia materially affecting her eligibility for asylum
2
1 “merely quarrels over the correctness of the [agency’s]
2 factual findings or justification for the discretionary
3 choices” and does not raise a reviewable constitutional
4 claim or a question of law. Xiao Ji Chen v. U.S. Dep’t of
5 Justice, 471 F.3d 315, 329 (2d Cir. 2006); see 8 U.S.C.
6 §§ 1158(a)(3), 1252(a)(2)(D). We likewise lack jurisdiction
7 to review Bong’s unexhausted claim for CAT relief. Karaj v.
8 Gonzales, 462 F.3d 113, 119 (2d Cir. 2006).
9 Bong challenges the agency’s denial of withholding of
10 removal, contending that a 2002 church bombing and multiple
11 thefts established past persecution on account of her
12 Chinese ethnicity and Christian faith. Based on the record
13 before it, the agency could properly determine that the
14 deprivation of Bong’s personal property was insufficiently
15 severe to constitute persecution. See Ivanishvili v. U.S.
16 Dep’t of Justice, 433 F.3d 332, 341-42 (2d Cir. 2006); Ci
17 Pan v. U.S. Att’y Gen., 449 F.3d 408, 412-13 (2d Cir. 2006).
18 It could also rely on Bong’s inability to demonstrate that
19 the Indonesian government was unable or unwilling to control
20 the perpetrator of the church bombing. See Aliyev v.
21 Mukasey, 549 F.3d 111, 116 (2d Cir. 2008); Pavlova v. INS,
22 441 F.3d 82, 91 (2d Cir. 2006); Matter of Acosta, 19 I. & N.
3
1 Dec. 211, 222 (B.I.A. 1985). Bong does not challenge, and
2 we therefore do not consider, the BIA’s determination that
3 she failed to establish a clear probability of future
4 persecution by demonstrating that her fear of returning to
5 Indonesia was objectively reasonable. See Yueqing Zhang v.
6 Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005).
7 For the foregoing reasons, the petition for review is
8 DISMISSED in part and DENIED in part. As we have completed
9 our review, any stay of removal that the Court previously
10 granted is VACATED, and any pending motion for a stay of
11 removal is DISMISSED as moot. Any pending request for oral
12 argument is DENIED in accordance with Federal Rule of
13 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
14 34.1(b).
15 FOR THE COURT:
16 Catherine O’Hagan Wolfe, Clerk
4