Subrata v. Holder , 431 F. App'x 28 ( 2011 )

10-1017-ag
Subrata v. Holder
BIA
Abrams, IJ
A090 347 484
A090 347 485
A090 347 486
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 23rd day of June, two thousand eleven.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 REENA RAGGI,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _______________________________________
12
13 RIZAL ZEFANYA SUBRATA, SETIAWATI LIM,
14 NICHOLAS ZEFANYA SUBRATA,
15 Petitioners,
16
17 v. 10-1017-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 ______________________________________
23
24
25 FOR PETITIONERS: Aaron Shapiro, The Shapiro Law Firm,
26 New York, New York.
27
1 FOR RESPONDENT: Tony West, Assistant Attorney
2 General; Carl H. McIntyre, Jr.,
3 Assistant Director; Marion E.
4 Guyton, Trial Attorney, Office of
5 Immigration Litigation, Civil
6 Division, United States Department
7 of Justice, Washington, D.C.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review
12 is DENIED.
13 Petitioners Rizal Zefanya Subrata, Setiawati Lim, and
14 Nicholas Zefanya Subrata, natives and citizens of Indonesia,
15 seek review of a February 23, 2010, order of the BIA
16 affirming the June 11, 2008, decision of Immigration Judge
17 (“IJ”) Steven R. Abrams denying their application for
18 asylum, withholding of removal, and relief under the
19 Convention Against Torture (“CAT”). In re Rizal Zefanya
20 Subrata, Setiawati Lim, Nicholas Zefanya Subrata, Nos. A090
21 347 484/485/486 (B.I.A. Feb. 23, 2010), aff’g Nos. A090 347
22 484/485/486 (Immig. Ct. N.Y. City June 11, 2008). We assume
23 the parties’ familiarity with the underlying facts and
24 procedural history of this case.
25 Under the circumstances of this case, we review the
26 IJ’s decision as supplemented by the BIA’s decision. See
2
1 Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
2 applicable standards of review are well established.
3 See 8 U.S.C. § 1252(b)(4)(B); Jian Hui Shao v. Mukasey, 546
4 F.3d 138, 156-58 (2d Cir. 2008); Salimatou Bah v. Mukasey,
5 529 F.3d 99, 110 (2d Cir. 2008).
6 As an initial matter, we decline to review the
7 petitioners’ CAT claim as they failed to exhaust it before
8 the agency. See 8 U.S.C. § 1252(d)(1) (requiring exhaustion
9 of all administrative remedies). Although we may consider
10 an issue not raised by an applicant in the course of an
11 appeal to the BIA when the BIA nevertheless addressed the
12 issue, Waldron v. INS, 17 F.3d 511, 515 n.7 (2d Cir. 1993),
13 the BIA did not excuse the petitioners’ failure to exhaust
14 as it explicitly noted that they did not challenge the IJ’s
15 finding that they were ineligible for CAT relief.
16 Therefore, considering the petitioner’s new arguments for
17 the first time in this Court would defeat the purpose of the
18 issue exhaustion requirement—namely, to allow the agency to
19 review its own decisions for error after having the
20 opportunity to consider the applicant’s arguments. See
21 Theodoropoulos v. INS, 358 F.3d 162, 171 (2d Cir. 2004).
22
3
1 The petitioners did, however, exhaust before the BIA
2 their arguments that they established past persecution and a
3 pattern or practice of persecution against non-Muslim ethnic
4 Chinese in Indonesia. But these arguments are unavailing.
5 The agency reasonably found that Rizal Zefanya
6 Subrata’s testimony that he was attacked by a mob did not
7 establish that he was subjected to past persecution, because
8 it determined that he did not demonstrate that the incident
9 was serious enough to rise to the level of persecution.
10 Persecution requires that the harm suffered be sufficiently
11 severe, rising above “mere harassment.” Ivanishvili v. U.S.
12 Dep’t of Justice, 433 F.3d 332, 341 (2d Cir. 2006). This
13 Court has said that the difference between harassment and
14 persecution is one of degree, which must be assessed with
15 regard to “the context in which the mistreatment occurs.”
16 Beskovic v. Gonzales, 467 F.3d 223, 226 (2d Cir.
17 2006).(emphasis in original). Accordingly, this Court has,
18 for example, cautioned the agency to be “keenly sensitive to
19 the fact that a `minor beating,’ or for that matter, any
20 physical degradation designed to cause pain, humiliation, or
21 other suffering, may rise to the level of persecution if it
22 occurred in the context of an arrest or detention on the
4
1 basis of a protected ground.” Id. Here, the agency
2 reasonably considered the context of the alleged mob attack
3 on Subrata following a soccer match while his car was
4 sitting in traffic, including his testimony that he was hit
5 in the face with a wooden flag pole and that his wallet was
6 stolen, and found that the incident was not serious enough
7 to constitute persecution. Id.8 The agency also reasonably found that Setiawati Lim’s
9 testimony that she was attacked did not establish past
10 persecution because she did not demonstrate that she was
11 attacked on account of her religion or ethnicity. While the
12 petitioners argue that Lim was targeted and attacked because
13 she was Chinese—as evidenced by the fact that her attacker,
14 a native Indonesian, said “hey, Chinese, this what you
15 deserve”—her argument does not compel the conclusion that
16 she was attacked on account of her race. See 8 U.S.C.
17 § 1252(b)(4)(B) (providing that the agency’s findings of
18 fact are “conclusive unless any reasonable adjudicator would
19 be compelled to conclude to the contrary”); see also Lie v.
20 Ashcroft, 396 F.3d 530, 535-36 (3d Cir. 2005) (explaining
21 that when an individual was a victim of ordinary crime, a
22 single ethnic slur did not compel the conclusion that the
5
1 attackers were motivated by ethnicity). Instead, the agency
2 reasonably found that she did not establish that she was
3 attacked because of her race, but, rather, was a victim of
4 general crime. See Melgar de Torres v. Reno, 191 F.3d 307,
5 314 (2d Cir. 1999) (“[G]eneral crime . . . does not lend
6 support to an asylum claim since a well-founded fear of
7 persecution must be on account of an enumerated ground set
8 forth in the Act, and general crime conditions are not a
9 stated ground.”). Thus, the agency did not err in finding
10 that the petitioners failed to demonstrate past persecution.
11 Finally, the petitioners argue that the country
12 conditions evidence establishes that there is a pattern or
13 practice of persecution against Chinese non-Muslims in
14 Indonesia. However, the agency properly considered the
15 evidence of country conditions and reasonably concluded that
16 there was no evidence of a pattern or practice of
17 discrimination. See Santoso v. Holder, 580 F.3d 110, 112
18 (2d Cir. 2009) (affirming the agency’s conclusion that the
19 country conditions evidence did not establish a pattern or
20 practice of persecution of Chinese Christians in Indonesia).
21 Thus, the agency did not err in concluding that the
22 petitioners failed to establish their eligibility for asylum
6
1 as they established neither past persecution nor a well-
2 founded fear of future persecution. See Ramsameachire v.
3 Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004) (stating that to
4 establish eligibility for asylum, an applicant must
5 establish past persecution or a well-founded fear of future
6 persecution). Because the petitioners were unable to meet
7 their burden for asylum, they necessarily failed to meet the
8 higher burden required to succeed on a claim for withholding
9 of removal. See Gomez v. INS, 947 F.2d 660, 665 (2d Cir.
10 1991).
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, any stay of
13 removal that the Court previously granted in this petition
14 is VACATED, and any pending motion for a stay of removal in
15 this petition is DISMISSED as moot. Any pending request for
16 oral argument in this petition is DENIED in accordance with
17 Federal Rule of Appellate Procedure 34(a)(2), and Second
18 Circuit Local Rule 34.1(b).
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
21
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