Wing Jaya Dinanto v. U.S. Attorney General ( 2009 )

  •                                                                [DO NOT PUBLISH]
                          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
                        Petition for Review of a Decision of the
                             Board of Immigration Appeals
                                    (June 1, 2009)
    Before MARCUS, PRYOR and KRAVITCH, Circuit Judges.
          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
              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).
    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
               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.
    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
    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
    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.
             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.