Budiman v. Holder , 444 F. App'x 464 ( 2011 )

10-3054-ag
Budiman v. Holder
BIA
Burr, IJ
A088 996 494
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 27th day of September, two thousand eleven.
5
6 PRESENT:
7 JOSEPH M. MCLAUGHLIN,
8 GUIDO CALABRESI,
9 RICHARD C. WESLEY,
10
11 Circuit Judges.
12 _______________________________________
13
14 GRACE SUSILOWATI BUDIMAN,
15 Petitioner,
16
17 v. 10-3054-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL
21 Respondent.
22 ______________________________________
23
24 FOR PETITIONER: Oleh R. Tustaniwsky, Brooklyn, New
25 York.
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Nancy E. Friedman, Senior
28 Litigation Counsel; Sharon M. Clay,
29 Trial Attorney, Office of
1 Immigration Litigation, Civil
2 Division, United States Department
3 of Justice, Washington, D.C.
4
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
8 is DENIED.
9 Petitioner Grace Susilowati Budiman, a native and
10 citizen of Indonesia, seeks review of a June 29, 2010, order
11 of the BIA affirming the December 15, 2008, decision of
12 Immigration Judge (“IJ”) Sarah M. Burr denying her
13 application for asylum, withholding of removal, and relief
14 under the Convention Against Torture (“CAT”). In re Grace
15 Susilowati Budiman, No. A088 996 494 (B.I.A. June 29, 2010),
16 aff’g A088 996 494 (Immig. Ct. N.Y. City Dec. 15, 2008). We
17 assume the parties’ familiarity with the underlying facts
18 and procedural history in this case.
19 Under the circumstances of this case, we have reviewed
20 the IJ’s decision as supplemented by the BIA’s decision.
21 See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
22 The applicable standards of review are well-established.
23 See 8 U.S.C. § 1252(b)(4)(B); Salimatou Bah v. Mukasey, 529
24 F.3d 99, 110 (2d Cir. 2008).
2
1 Because Budiman does not challenge the agency’s
2 findings that she did not establish past persecution or her
3 eligibility for CAT relief, we address only her argument
4 that she established her eligibility for asylum and
5 withholding of removal based on a pattern or practice of
6 persecution against Chinese Christians in Indonesia. See
7 Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1, 545 n.7
8 (2d Cir. 2005).
9 Because Budiman did not submit individualized evidence
10 of future harm, she was required to establish that the
11 threat of harm to Chinese Christians in Indonesia was “so
12 systemic or pervasive” that it amounted “to a pattern or
13 practice of persecution.” See Matter of A-M-, 23 I. & N.
14 Dec. 737, 741 (BIA 2005); see also Santoso v. Holder, 580
15 F.3d 110, 112 & n. 1 (2d Cir. 2009). The BIA considered her
16 evidence of sporadic violence, discrimination, and the
17 closure of churches, and concluded that these incidents did
18 not amount to a pattern or practice of persecution. We find
19 no error in that determination. See Santoso, 580 F.3d at
20 112 (finding no error in the agency’s conclusion that the
21 country conditions evidence does not establish a pattern or
22 practice of persecution of ethnic Chinese or Catholics in
3
1 Indonesia); see also Healey v. Chelsea Res., Ltd., 947 F.2d
2 611, 618 (2d Cir. 1991) (“[W]here the evidence would support
3 either of competing inferences, the fact that this Court
4 might have drawn one inference does not entitle it to
5 overturn the trial court’s choice of the other.”).
6 Thus, the agency did not err in concluding that she did
7 not establish her eligibility for asylum as she did not
8 establish a well-founded fear of future persecution. See
9 Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004)
10 (stating that to establish eligibility for asylum, an
11 applicant must establish past persecution or a well-founded
12 fear of future persecution).1 Because Budiman was unable to
13 meet her burden for asylum, she necessarily failed to meet
14 the higher burden required to succeed on a claim for
15 withholding of removal. See Paul v. Gonzales, 444 F.3d 148,
16 156 (2d Cir. 2006); Gomez v. INS, 947 F.2d 660, 665 (2d Cir.
17 1991).
18 For the foregoing reasons, the petition for review is
1
Because Budiman’s fear of persecution was not
objectively reasonable, we do not address the agency’s
separate finding that her previous returns to Indonesia
suggested that she did not have a subjective fear of
persecution. See Ramsameachire, 357 F.3d at 178(requiring an applicant to show both a subjective fear of
persecution and that the fear is objectively reasonable).
4
1 DENIED. As we have completed our review, any stay of
2 removal that the Court previously granted in this petition
3 is VACATED, and any pending motion for a stay of removal in
4 this petition is DISMISSED as moot. Any pending request for
5 oral argument in this petition is DENIED in accordance with
6 Federal Rule of Appellate Procedure 34(a)(2), and Second
7 Circuit Local Rule 34.1(b).
8 FOR THE COURT:
9 Catherine O’Hagan Wolfe, Clerk
10
11
5