Tanusaputra v. Holder , 403 F. App'x 549 ( 2010 )

08-2311-ag
Tanusaputra v. Holder
BIA
Nelson, IJ
A096 257 475
A096 257 476
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 14 th day of December, two thousand ten.
5
6 PRESENT:
7 JON O. NEWMAN,
8 JOSÉ A. CABRANES,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 ______________________________________
12
13 HENGKY TANUSAPUTRA, CAROLINA DEWI,
14 Petitioners,
15
16 08-2311-ag
17 v. NAC
18
19
20 ERIC H. HOLDER, JR., UNITED STATES
21 ATTORNEY GENERAL,
22 Respondent.
23 ______________________________________
24
25 FOR PETITIONERS: Jack Herzig, Glenside, Pennsylvania.
26
27 FOR RESPONDENT: Tony West, Assistant Attorney
28 General; James E. Grimes, Senior
29 Litigation Counsel; Elizabeth Young,
30 Attorney, Office of Immigration
31 Litigation, Civil Division, United
1 States Department of Justice,
2 Washington, D.C.
3
4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review
7 is DENIED.
8 Petitioners, Hengky Tanusaputra and Carolina Dewi,
9 husband and wife and natives and citizens of Indonesia, seek
10 review of an April 10, 2008, decision of the BIA affirming
11 the May 24, 2006, decision of Immigration Judge (“IJ”)
12 Barbara A. Nelson denying their applications for asylum and
13 withholding of removal. In re Tanusaputra, No. A096 257
14 475/476 (B.I.A. April 10, 2008), aff’g No. A096 257 475/476
15 (Immig. Ct. N.Y. City May 24, 2006). We assume the parties’
16 familiarity with the underlying facts and procedural history
17 of the case.
18 Under the circumstances of this case, we review both
19 the IJ’s and the BIA’s opinions “for the sake of
20 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
21 2008). The applicable standards of review are well-
22 established. See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin
23 Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
2
1 Tanusaputra and Dewi challenge only the agency’s denial
2 of their applications for withholding of removal. The
3 agency did not err in determining that they failed to
4 demonstrate that they would more likely than not be
5 persecuted upon returning to Indonesia. See Jian Xing Huang
6 v. INS, 421 F.3d 125, 129 (2d Cir. 2005). The agency
7 reasonably found that Tanusaputra and Dewi did not claim to
8 have suffered any past persecution while living in Indonesia
9 for most of their lives, including during the violence that
10 occurred in 1998, and did not state any reasons that they
11 would be personally targeted for persecution other than the
12 allegation that all ethnic Chinese and Christians were
13 subject to persecution. Moreover, the agency reasonably
14 relied on the fact that Tanusaputra’s and Dewi’s family
15 members, who are also Chinese and Christian, continue to
16 live in Indonesia without incident. See Melgar de Torres v.
17 Reno, 191 F.3d 307, 313 (2d Cir. 1999).
18 The agency also did not err in determining that
19 Tanusaputra and Dewi failed to establish that a pattern or
20 practice of persecution against Chinese Christians exists in
21 Indonesia, as it reasonably relied on country conditions
22 evidence in the record to find that, while there have been
3
1 random, sporadic, and localized outbreaks of violence
2 against Chinese Christians, the record did not establish
3 that there is systematic persecution. See Santoso v.
4 Holder, 580 F.3d 110, 112 (2d Cir. 2009).
5 While Tanusaputra and Dewi claim that the agency did
6 not consider the country conditions evidence they presented,
7 the record does not compellingly suggest that the agency
8 failed to consider expert witness affidavits and other
9 testimony, particularly when the IJ admitted the affidavits
10 into the record, specifically stated that the affidavits
11 were being considered, and made an assessment of the
12 background material in total, and when the BIA also
13 expressly considered the evidence. See Xiao Ji Chen v. U.S.
14 Dep’t of Justice, 471 F.3d 315, 338 n.17 (2d Cir. 2006).
15 The BIA also did not engage in impermissible fact-finding,
16 but rather upheld the IJ’s fact-finding that there was not
17 systematic persecution of Chinese Christians in Indonesia,
18 but only random and sporadic outbreaks of violence.
19 See 8 C.F.R. §§ 1003.1(d)(3)(iv), 1003.3(f); Xian Tuan Ye v.
20 DHS, 446 F.3d 289, 296 (2d Cir. 2006).
21 Because the agency reasonably determined that
22 Tanusaputra and Dewi failed to demonstrate an individualized
4
1 likelihood of persecution or a pattern or practice of
2 persecution, the agency did not err in denying their
3 applications for withholding of removal. See 8 C.F.R.
4 § 1208.16(b).
5 For the foregoing reasons, the petition for review is
6 DENIED. As we have completed our review, any stay of
7 removal that the Court previously granted in this petition
8 is VACATED, and any pending motion for a stay of removal in
9 this petition is DISMISSED as moot. Any pending request for
10 oral argument in this petition is DENIED in accordance with
11 Federal Rule of Appellate Procedure 34(a)(2), and Second
12 Circuit Local Rule 34.1(b).
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe, Clerk
15
5