         11-2113-ag
         Ha v. Holder
                                                                                       BIA
                                                                                  Videla, IJ
                                                                               A089 262 843
                         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 21st day of August, two thousand twelve.
 5
 6       PRESENT:
 7                BARRINGTON D. PARKER,
 8                RICHARD C. WESLEY,
 9                SUSAN L. CARNEY,
10                     Circuit Judges.
11       _________________________________________
12
13       SUN KIT SIONG HA,
14                Petitioner,
15
16                      v.                                      11-2113-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               H. Raymond Fasano, Youman, Madeo &
24                                     Fasano, LLP, New York, New York.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Ada E. Bosque, Senior
28                                     Litigation Counsel; Puneet Cheema,
29                                     Trial Attorney, United States
 1                           Department of Justice, Office of
 2                           Immigration Litigation, Washington,
 3                           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       Sun Kit Siong Ha, a native and citizen of Indonesia,

10   seek review of an April 25, 2011, order of the BIA affirming

11   the May 14, 2009, decision of Immigration Judge (“IJ”)
12   Gabriel C. Videla, which denied his application for asylum,

13   withholding of removal, and relief under the Convention

14   Against Torture (“CAT”), and denying his motion to remand.
15   In re Sun Kit Siong Ha, No. A089 262 843 (B.I.A. Apr. 25,

16   2011), aff’g No. A089 262 843 (Immig. Ct. N.Y. City May 14,

17   2009).   We assume the parties’ familiarity with the

18   underlying facts 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.    See Yan Chen

21   v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).   The
22   applicable standards of review are well-established.
23   See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562

24   F.3d 510, 513 (2d Cir. 2009); Li Yong Cao v. U.S. Dep't of
25   Justice, 421 F.3d 149, 156-57 (2d Cir. 2005).

26       The only issues before us are Ha’s eligibility for
27   asylum or withholding of removal based on an alleged pattern


                                   2
 1   or practice of persecution of Chinese Christians in
 2   Indonesia, and the BIA’s denial of Ha’s motion to remand.
 3       Ha asserts that the agency erred in concluding that

 4   there is not a pattern or practice of persecution of ethnic
 5   Chinese Christians in Indonesia.    See 8 C.F.R.

 6   § 1208.16(b)(2)(i) (providing that an applicant shall not be
 7   required to show that he will be singled out individually
 8   for persecution if he establishes that there is a pattern or

 9   practice of persecution of a group of similarly situated

10   persons); Mufied v. Mukasey, 508 F.3d 88, 91 (2d Cir. 2007).
11   The agency’s determination is supported by substantial

12   evidence.    The Department of State Reports show that

13   although Chinese Christians had been subject to harassment
14   and discrimination, violence and discrimination had

15   decreased.    The record evidence provides a sufficient basis

16   for finding no pattern or practice of persecution of ethnic
17   Chinese Christians in Indonesia.    See Santoso v. Holder, 580

18   F.3d 110 (2d Cir. 2009).
19       Ha also challenges the BIA’s failure to consider
20   additional evidence he submitted on appeal.    Because the

21   BIA, as an appellate body, does not conduct fact-finding, a
22   party asserting that the BIA cannot properly resolve an

23   appeal without further fact-finding must file a motion to
24   remand.   8 C.F.R. § 1003.1(d)(3)(iv).   The BIA’s denial of a

                                    3
 1   motion to remand that “relies on newly available evidence is
 2   held to the substantive requirements of a motion to reopen,”
 3   Li Yong Cao, 421 F.3d at 156, and accordingly, Ha must show

 4   that the “evidence sought to be offered is material and was
 5   not available and could not have been discovered or

 6   presented at the former hearing.”    8 C.F.R. § 1003.2(c)(1).
 7   Because the evidence Ha sought to submit related to
 8   terrorist bombings of hotels, it did not demonstrate a

 9   pattern or practice of persecution against ethnic Chinese

10   Christians in Indonesia.
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
22
23




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