Wing Jaya Dinanto v. U.S. Attorney General , 331 F. App'x 656 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-16251 JUNE 1, 2009
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
Agency No. A097-191-178
WING JAYA DINANTO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(June 1, 2009)
Before MARCUS, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Wing Jaya Dinanto seeks review of the Board of Immigration Appeals’s
(“BIA”) decision affirming the Immigration Judge’s (“IJ”) denial of asylum and
withholding of removal under the Immigration and Nationality Act (“INA”), 8
U.S.C. §§ 1158, 1231(b)(3), and relief under the United Nations Convention
Against Torture and Other Cruel, Inhumane, or Degrading Treatment or
Punishment (“CAT”), 8 C.F.R. § 208.16(c).1 The BIA found, inter alia, that
reports of improvements undercut Dinanto’s claim that persecution was “so
systematic or pervasive” for ethnic Chinese and Christians in Indonesia as to
amount to a “pattern or practice” of persecution. On appeal, Dinanto argues that
the BIA by applying the “systematic and pervasive” standard did not properly
review his “pattern or practice” of persecution claim. After thorough review, we
deny the petition.
When the BIA issues a decision, we only review that decision, “except to the
extent that it expressly adopts the IJ’s opinion.” Al Najjar v. Ashcroft, 257 F.3d
1262, 1284 (11th Cir. 2001). “Insofar as the Board adopts the IJ’s reasoning, we
will review the IJ’s decision as well.” Id. Because the BIA issued its own decision
and adopted the IJ’s reasoning, we review both decisions in this case.
We review the BIA’s legal conclusions de novo, and the BIA’s and IJ’s
1
Even though Dinanto sets forth asylum law in his brief, he has abandoned his asylum
claim by not challenging the BIA’s finding that his asylum application was untimely without
excuse. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (holding
that where a party fails to raise an argument on the merits of an issue in their brief or makes only
passing references to an issue, such issue is deemed abandoned on appeal). He also has
abandoned any challenge to the BIA’s denial of CAT relief by failing to argue that he would
more likely than not be tortured by the government. See Reyes-Sanchez v. U.S. Att’y Gen., 369
F.3d 1239, 1242 (11th Cir. 2004) (noting that an alien seeking CAT relief must establish that it is
more likely than not that he will be tortured with the government’s acquiescence if sent to the
proposed country of removal).
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factual findings under the substantial evidence test. Forgue v. U.S. Att’y Gen., 401
F.3d 1282, 1286 (11th Cir. 2005) (discussing the standard of review for an IJ’s
factual determinations); Adefemi v. Ashcroft, 386 F.3d 1022, 1026-27 (11th Cir.
2004) (en banc) (explaining the standard of review for a BIA’s factual findings);
Mohammed v. Ashcroft, 261 F.3d 1244, 1247 (11th Cir. 2001) (discussing the
standard of review for a legal challenge to the BIA’s decision). Under the
substantial evidence test, we “affirm the BIA’s decision if it is supported by
reasonable, substantial, and probative evidence on the record considered as a
whole.” Al Najjar, 257 F.3d at 1283-84 (quotations omitted). The substantial
evidence test is “deferential” and does not allow “re-weigh[ing] the evidence from
scratch.” Mazariegos v. U.S. Att’y Gen., 241 F.3d 1320, 1323 (11th Cir. 2001)
(quotations omitted). “To reverse . . . fact findings, we must find that the record
not only supports reversal, but compels it.” Mendoza v. U.S. Att’y Gen., 327 F.3d
1283, 1287 (11th Cir. 2003). “[T]he mere fact that the record may support a
contrary conclusion is not enough to justify a reversal of the administrative
findings.” Adefemi, 386 F.3d at 1027.
An alien may establish eligibility for withholding of removal under the INA
through evidence that he has suffered past persecution2 or would more likely than
2
By not raising the issue on appeal, Dinanto has abandoned any challenge to the BIA’s
finding that he did not suffer past persecution. See Sepulveda, 401 F.3d at 1228 n.2.
3
not be persecuted on account of his race, religion, nationality, membership of a
particular social group, or political opinion upon returning to his country. 8 C.F.R.
§ 208.16(b).
To establish a future threat to life or freedom, an alien may demonstrate
either that he will be singled out for persecution or that
there is a pattern or practice of persecution of a group of persons
similarly situated to the applicant on account of race, religion,
nationality, membership in a particular social group, or political
opinion[,] and . . . [t]he applicant establishes his . . . own inclusion in
and identification with such group of persons such that it is more
likely than not that his . . . life would be threatened upon return to that
country.
8 C.F.R. § 208.16(b)(2). The standard for withholding of removal “is more
stringent than the ‘well-founded fear of future persecution’ required for asylum.”
Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1375 (11th Cir. 2006) (quoting
Mazariegos, 241 F.3d at 1324 n.2)). We have said that “persecution is an extreme
concept, requiring more than a few isolated incidents of verbal harassment or
intimidation, and that mere harassment does not amount to persecution.”
Sepulveda, 401 F.3d at 1231 (quotations omitted).
Here, substantial evidence supports the BIA’s determination that Dinanto
did not establish that he would suffer persecution based on a pattern or practice of
ethnic Chinese and Christians being persecuted in Indonesia. The 2007 Country
Report considered by the BIA indicates that conditions for ethnic Chinese have
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improved in Indonesia. Further, Dinanto’s siblings, who are ethnic Chinese and
Christian, continue to reside in Indonesia without incident.
In short, Dinanto does not raise any argument that the BIA ignored or
overlooked his pattern or practice claim, or misconstrued the country reports. He
limits his attack to the BIA’s legal standard and its alleged vagueness, but he does
not demonstrate how a further refinement of this standard would have changed the
outcome in his favor. Given these considerations, the record does not compel a
finding that Dinanto would suffer persecution upon return to Indonesia.3
Accordingly, we deny Dinanto’s petition for review.
PETITION DENIED.
3
In addition, the Ninth Circuit’s decision in Sael v. Ashcroft, 386 F.3d 922 (9th Cir.
2004), is not binding precedent, and even if it did apply, Dinanto would not be entitled to relief
because he does not argue that he has an individualized risk of future persecution. See id. at
925-27 (holding that, even under the disfavored group approach, an applicant must show
evidence of his own individualized risk of future persecution and cannot rely solely on being a
member of the disfavored group for relief). Moreover, despite Dinanto’s contentions, the
Second Circuit in Mufied v. Mukasey, 508 F.3d 88 (2d Cir. 2007), did not remand because of a
disagreement with the BIA’s “systemic or pervasive” standard, but because the IJ and BIA failed
to address the petitioner’s pattern or practice claim. See id. at 91-93. In contrast, the BIA
addressed Dinanto’s pattern or practice claim in the first instance.
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