Budiono v. Holder , 326 F. App'x 713 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-2123
TRI EFENDY BUDIONO,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: April 17, 2009 Decided: May 21, 2009
Before WILKINSON, KING, and GREGORY, Circuit Judges.
Petition denied by unpublished per curiam opinion.
H. Raymond Fasano, MADEO & FASANO, New York, New York, for
Petitioner. Michael F. Hertz, Acting Assistant Attorney
General, William C. Peachey, Assistant Director, Carol
Federighi, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tri Efendy Budiono, a native and citizen of Indonesia,
petitions for review of an order of the Board of Immigration
Appeals (“Board”) dismissing his appeal from the immigration
judge’s order denying his applications for asylum, withholding
from removal and withholding under the Convention Against
Torture (“CAT”). Budiono claims there is a pattern or practice
of persecution in Indonesia against Christians and non-Muslims
who are ethnic Chinese. We deny the petition for review.
The INA authorizes the Attorney General to confer
asylum on any refugee. 8 U.S.C. § 1158(a)(1) (2006). It
defines a refugee as a person unwilling or unable to return to
his native country “because of persecution or a well-founded
fear of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion.”
8 U.S.C. § 1101(a)(42)(A) (2006). “Persecution involves the
infliction or threat of death, torture, or injury to one’s
person or freedom, on account of one of the enumerated grounds .
. . .” Li v. Gonzales, 405 F.3d 171, 177 (4th Cir. 2005)
(internal quotation marks and citations omitted).
“Applicants bear the burden of proving eligibility for
asylum.” Naizgi v. Gonzales, 455 F.3d 484, 486 (4th Cir. 2006);
see 8 C.F.R. § 1208.13(a) (2008). An alien can establish his
eligibility for asylum by proving he has a well-founded fear of
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future persecution on a protected ground. 8 C.F.R.
§ 1208.13(b)(2) (2008); Ngarurih v. Ashcroft, 371 F.3d 182, 187
(4th Cir. 2004). The alien need not show he would be
individually targeted for persecution if he shows there is “a
pattern or practice in his or her country of nationality . . .
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.” 8 C.F.R.
§ 1208.13(b)(2)(iii) (2008). To be a pattern or practice of
persecution, it must be “systemic, pervasive or organized.”
Ngure v. Ashcroft, 367 F.3d 975, 991 (8th Cir. 2004).
A determination regarding eligibility for asylum will
be affirmed if supported by substantial evidence on the record
considered as a whole. INS v. Elias-Zacarias, 502 U.S. 478, 481
(1992). “[A]dministrative findings of fact are conclusive
unless any reasonable adjudicator would be compelled to conclude
to the contrary.” 8 U.S.C. § 1252(b)(4)(B) (2006). We will
reverse the Board’s decision “only if the evidence presented . .
. was so compelling that no reasonable fact finder could fail to
find the requisite fear of persecution.” Rusu v. INS, 296 F.3d
316, 325 n.14 (4th Cir. 2002) (internal quotation marks and
citations omitted). Because the Board added its own reasoning
when it adopted the immigration judge’s decision, this court
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will review both decisions. Niang v. Gonzales, 492 F.3d 505,
511 n.8 (4th Cir. 2007).
We find the evidence does not compel a different
result. Substantial evidence supports the Board’s finding that
Budiono did not meet his burden of proof by showing a systemic
or organized movement by the Indonesian government or Muslims to
persecute ethnic Chinese or non-Muslims. We further note the
Board was not obligated to determine whether or not ethnic
Chinese were a disfavored group, as that term is used in Sael v
Ashcroft, 386 F.3d 922, 925-27 (9th Cir. 2004).
Accordingly, we deny the petition for review. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
PETITION DENIED
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