         11-3697                                                                       BIA
         Agustina v. Holder                                                     Vomacka, IJ
                                                                               A088 527 909


                               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 7th day of August, two thousand twelve.
 5
 6       PRESENT:
 7                GUIDO CALABRESI,
 8                GERARD E. LYNCH,
 9                DENNY CHIN,
10                     Circuit Judges.
11       _____________________________________
12
13
14       THEN LENNY AGUSTINA, AKA LENNY
15       AGUSTINA THEN,
16                Petitioner,
17
18                                                              11-3697
19                            v.                                NAC
20
21
22       ERIC H. HOLDER, JR., UNITED STATES
23       ATTORNEY GENERAL,
24                Respondent.
25       _____________________________________
26
27       FOR PETITIONER:                Oleh Roman Tustaniwsky, Brooklyn,
28                                      N.Y.
29
30       FOR RESPONDENT:                Tony West, Assistant Attorney
31                                      General; Carl H. McIntyre, Jr.,
32                                      Assistant Director; Kate D. Balaban,
33                                      Trial Attorney, Office of
34                                      Immigration Litigation, United
35                                      States Department of Justice,
36                                      Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

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

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

 4   is DENIED.

 5       Petitioner Then Lenny Agustina, a native and citizen of

 6   Indonesia, seeks review of an August 16, 2011, decision of

 7   the BIA affirming the November 13, 2009, decision of

 8   immigration judge (“IJ”) Alan Vomacka, denying her

 9   application for asylum, withholding of removal, and relief

10   under the Convention Against Torture (“CAT”).      In re Then

11   Lenny Agustina, No. A088 527 909 (B.I.A. Aug. 16, 2011),

12   aff’g No. A088 527 909 (Immig. Ct. N.Y. City Nov. 13, 2009).

13   We assume the parties’ familiarity with the underlying facts

14   and procedural history of this case.

15       Under the circumstances of this case, we have reviewed

16   both the BIA’s and IJ’s opinions.     Yun-Zui Guan v. Gonzales,

17   432 F.3d 391, 394 (2d Cir. 2005).    The applicable standards

18   of review are well-established.     See 8 U.S.C.

19   § 1252(b)(4)(B); Aliyev v. Mukasey, 549 F.3d 111, 115 (2d

20   Cir. 2008).

21       The agency did not err in finding that Agustina had

22   failed to establish a pattern or practice of persecution

23   against ethnic Chinese or Jehovah’s Witnesses in Indonesia.

                                  2
 1   First, the agency reasonably concluded that she failed to

 2   present sufficient evidence concerning the persecution, if

 3   any, of Jehovah’s Witnesses.   See Jian Xing Huang v. INS,

 4   421 F.3d 125, 129 (2d Cir. 2005) (per curiam) (holding that

 5   a well-founded fear is not objectively reasonable if it

 6   lacks “solid support” in the record and is merely

 7   “speculative at best”); see also Santoso v. Holder, 580 F.3d

 8   110, 112 (2d Cir. 2009) (per curiam) (upholding a BIA

 9   determination that no pattern or practice of persecution of

10   ethnic Chinese or Roman Catholics existed in Indonesia).

11   Moreover, while the International Religious Freedom Report

12   2009 states that extremist groups have used violence against

13   churches and that the Indonesian government bans

14   proselytizing, it does not compel the conclusion that

15   Agustina faces government-sanctioned persecution if returned

16   to Indonesia, as it also states that the government

17   “generally respect[s] religious freedom” and the Indonesian

18   constitution provides for freedom of religion.     See 8 U.S.C.

19   § 1252(b)(4)(B).

20       Further, the agency’s finding that Agustina had failed

21   to have her husband corroborate her claims was reasonable

22   because, even if her husband was unable to testify, he could

23   have submitted an affidavit.   See Kyaw Zwar Tun v. INS, 445

                                    3
 1   F.3d 554, 563 (2d Cir. 2006) (“We review an IJ’s finding

 2   that corroborative evidence was available for substantial

 3   evidence, and will not reverse unless a reasonable trier of

 4   fact is compelled to conclude that such corroborating

 5   evidence is unavailable.”).

 6       Agustina also argues that In re A-M-, 23 I. & N. Dec.

 7   737 (BIA 2005), does not support the agency’s conclusion

 8   that there is no pattern or practice of persecution of

 9   ethnic Chinese and Christians in Indonesia.   This argument

10   is meritless: Even though the evidence here is more recent

11   than in In re A-M-, it does not establish that there was a

12   pattern or practice of persecution.   See Jian Xing Huang,

13   421 F.3d at 129.   Agustina also attempts to distinguish In

14   re A-M- by relying on Mufied v. Mukasey, 508 F.3d 88 (2d

15   Cir. 2007), in which we remanded and asked the BIA to

16   clarify the In re A-M- standard.   But as we have explained,

17   although the BIA continues to apply the In re A-M- standard

18   “where the BIA explicitly discusse[s] the pattern or

19   practice claim and the record includes substantial

20   documentary evidence regarding the conditions in [a]

21   petitioner’s homeland, we are able to” determine whether the

22   agency’s determination was correct without remand.     Santoso,

23   580 F.3d at 112 n.1.   In the present case, the agency did

                                   4
 1   not ignore Agustina’s pattern or practice claim, but

 2   specifically found that, based on the documentary evidence,

 3   she had “not shown that . . . a pattern or practice of

 4   persecution exist[ed] for similarly situated Indonesian

 5   Christians.”

 6       Further, Agustina’s argument that the Ninth Circuit has

 7   remanded a similar case because the BIA had failed to apply

 8   a “disfavored group” analysis is unavailing, as the Ninth

 9   Circuit’s disfavored group analysis standard is not binding

10   on this Court, and we have repeatedly declined to adopt that

11   analysis.   See, e.g., Johanes v. Holder, 358 Fed. App’x 280,

12   282 n.2 (2d Cir. 2009); Korompis v. Holder, 334 Fed. App’x

13   443, 444 n.3 (2d Cir. 2009).

14       Accordingly, the agency reasonably found that Agustina

15   had failed to establish a well-founded fear of future

16   persecution.   Because she was unable to show a well-founded

17   fear of future persecution, as needed to make out an asylum

18   claim, she was necessarily unable to meet the higher

19   standard required for withholding of removal.     See Paul v.

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

21   Agustina did not present any particularized evidence that it

22   is more likely than not that she would be tortured in

23   Indonesia, the agency’s decision to deny CAT relief is

                                    5
 1   supported by substantial evidence.   See Mu Xiang Lin v. U.S.

 2   Dep’t of Justice, 432 F.3d 156, 160 (2d Cir. 2005).

 3       For the foregoing reasons, the petition for review is

 4   DENIED. As we have completed our review, the pending motion

 5   for a stay of removal is DISMISSED as moot.

 6                              FOR THE COURT:
 7                              Catherine O’Hagan Wolfe, Clerk
 8
 9
10
11




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