         10-1086-ag
         Wargono v. Holder
                                                                                        BIA
                                                                                  Laforest, IJ
                                                                               A 097 976 253

                                  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 2nd day of June, two thousand eleven.
 5
 6       PRESENT:
 7                JOHN M. WALKER, JR.,
 8                PIERRE N. LEVAL,
 9                ROSEMARY S. POOLER,
10                     Circuit Judges.
11       _______________________________________
12
13       STEFANY WARGONO,
14                Petitioner,
15
16                           v.                                 10-1086-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:                   Aaron Shapiro, New York, New York.
24
25       FOR RESPONDENT:                   Tony West, Assistant Attorney
26                                         General; Michael P. Lindemann,
27                                         Assistant Director; Jeffrey L.
28                                         Menkin, Trial Attorney, Office of
29                                         Immigration Litigation, Civil
30                                         Division, United States Department
31                                         of Justice, Washington, D.C.
32
33
 1        UPON DUE CONSIDERATION of this petition for review of a

 2   decision of the Board of Immigration Appeals (“BIA”), it is

 3   hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

 4   review is DENIED in part and DISMISSED in part.

 5        Petitioner Stefany Wargono, a native and citizen of

 6   Indonesia, seeks review of a February 26, 2010, decision of

 7   the BIA, affirming the September 23, 2005, decision of

 8   Immigration Judge (“IJ”) Brigitte Laforest, denying her

 9   application for asylum and withholding of removal.      In re

10   Stefany Wargono, No. A097 976 253 (B.I.A. Feb. 26, 2010),

11   aff’g No. A097 976 253 (Immig. Ct. N.Y. City Sept. 23,

12   2005).    We assume the parties’ familiarity with the

13   underlying facts and procedural history of the case.

14        Under the circumstances of this case, we review both

15   the IJ’s and the BIA’s decisions for the sake of

16   completeness.     See Zaman v. Mukasey, 514 F.3d 233, 237 (2d

17   Cir. 2008).     The applicable standards of review are well-

18   established.     See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.

19   Holder, 562 F.3d 510, 513 (2d Cir. 2009).

20   I.   Asylum and Withholding of Removal

21        A.    Past Persecution

22        The record supports the agency’s determination that

23   Wargono failed to demonstrate that she suffered past

                                     2
 1   persecution.   Before the IJ, Wargono argued that she

 2   suffered past persecution because: (1) her Catholic school

 3   was threatened with a bomb by native Indonesians; (2) she

 4   was robbed by a native Indonesian taxi driver; and (3) a

 5   taxi driver intentionally began driving away while she was

 6   still exiting the taxi, causing her to fall to the ground.

 7   Wargono did not testify that she sustained any injuries from

 8   these incidents.   Nor was it unreasonable for the IJ to rule

 9   that the instances of bias-based hostility she testified

10   were insufficient to constitute persecution.    See Shi Liang

11   Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 305 (2d

12   Cir.2005) (en banc) (“persecution is an extreme concept that

13   does not include every sort of treatment our society regards

14   as offensive”); Ivanishvili v. U.S. Dep’t of Justice, 433

15   F.3d 332, 341 (2d Cir. 2006) (holding that past persecution

16   requires that the harm be sufficiently severe, rising above

17   “mere harassment”).   Accordingly, we will not disturb the

18   agency’s conclusion that any harm Wargono suffered did not

19   constitute persecution.

20       B.   Well-Founded Fear of Persecution

21       Because Wargono failed to demonstrate that she suffered

22   past persecution, she was not entitled to a presumption of a

23   well-founded fear of future persecution.    See 8 C.F.R.

                                   3
 1   § 1208.13(b).   The agency reasonably found that Wargono

 2   failed to demonstrate a pattern or practice of persecution

 3   against ethnic-Chinese Catholics in Indonesia.   See Mufied

 4   v. Mukasey, 508 F.3d 88, 91 (2d Cir. 2007); see also Santoso

 5   v. Holder, 580 F.3d 110 (2d Cir. 2009).   As the BIA found,

 6   the State Department’s 2004 Country Report on Human Rights

 7   Practices in Indonesia, stated that the Indonesian

 8   government generally promotes racial and ethnic tolerance

 9   and that discrimination and harassment of ethnic Chinese has

10   declined when compared with previous years.   Furthermore,

11   the State Department’s International Religious Freedom

12   Report indicated that the Indonesian government was taking

13   measures to address the deterioration of religious

14   tolerance.   Accordingly, because the agency’s determination

15   that Wargono failed to establish a well-founded fear of

16   future persecution is supported by substantial evidence, see

17   8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of

18   Homeland Sec., 494 F.3d 281, 289 (2d Cir. 2007), the agency

19   did not err in denying her asylum application.

20       Because Wargono was unable to show the objective

21   likelihood of persecution needed to make out an asylum claim

22   based on her Chinese ethnicity or Catholic religion, she was

23   necessarily unable to meet the higher standard required to

                                   4
 1   succeed on a claim for withholding of removal because both

 2   claims rested on the same factual predicate.    See Paul v.

 3   Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

 4   II. Convention Against Torture (“CAT”)

 5       Although the BIA misstated that the IJ denied Wargono’s

 6   application for CAT relief, it made no findings or other

 7   comments regarding her eligibility for CAT relief, and

 8   Wargono expressly waived her right to apply for CAT relief

 9   before the IJ.   Thus, as a statutory matter, we are without

10   jurisdiction to consider Wargono’s argument that she

11   established her eligibility for CAT relief.    8 U.S.C.

12   § 1252(d)(1).

13       For the foregoing reasons, the petition for review is

14   DENIED in part and DISMISSED in part.

15

16                               FOR THE COURT:
17                               Catherine O’Hagan Wolfe, Clerk
18
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