         10-1079-ag                                                                    BIA
         Hidavat v. Holder                                                        Lamb, IJ
                                                                               A098 477 466
                              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 11th day of July, two thousand eleven.
 5
 6       PRESENT:
 7                PIERRE N. LEVAL,
 8                JOSÉ A. CABRANES,
 9                ROBERT D. SACK,
10                  Circuit Judges.
11       _________________________________________
12
13       TONNY HIDAVAT,
14                Petitioner,
15
16                           v.                                 10-1079-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Ronald S. Salomon, New York, New
24                                     York.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Ernesto H. Molina,Jr.,
28                                     Assistant Director; Drew C.
29                                     Brinkman, Trial Attorney, United
30                                     States Department of Justice, Office
31                                     of Immigration Litigation,
32                                     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       Tonny Hidavat, a native and citizen of Indonesia, seeks

 6   review of a February 26, 2010, order of the BIA affirming

 7   the May 18, 2006, decision of Immigration Judge (“IJ”)

 8   Elizabeth Lamb, which denied his applications for asylum,

 9   withholding of removal and relief under the Convention

10   Against Torture (“CAT”).   In re Tonny Hidavat, No. A098 477

11   466 (B.I.A. Feb. 26, 2010), aff’g No. A098 477 466 (Immig.

12   Ct. N.Y. City May 18, 2006).   We assume the parties’

13   familiarity with the underlying facts and procedural history

14   in this case.

15       Under the circumstances of this case, we have reviewed

16   the IJ’s decision as supplemented by both BIA decisions.

17   See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).

18   The applicable standards of review are well-established.

19   See Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

20       The agency reasonably determined that Hidavat failed to

21   demonstrate past persecution or a well-founded fear of

22   future persecution.   As the agency found, the incidents

23   Hidavat described - being robbed at knife point on two

                                    2
 1   separate occasions - were insufficiently severe to

 2   constitute persecution.    See Ivanishvili v. U.S. Dep’t of

 3   Justice, 433 F.3d 332, 341 (2d Cir. 2006) (in order for harm

 4   to constitute persecution, it must be sufficiently severe,

 5   rising above “mere harassment”).   Moreover, even if Hidavat

 6   had suffered harm severe enough to constitute persecution,

 7   there is no evidence to suggest that it was on account of a

 8   statutorily protected ground, as Hidavat presented no

 9   evidence to show that the robbers had any motive other than

10   monetary gain.   See 8 U.S.C. § 1101(a)(42).

11       Because Hidavat did not establish past persecution, he

12   is not entitled to a presumption of future persecution.       See

13   8 C.F.R. § 208.13(b)(1).   Although Hidavat argues,

14   independent from his claim of past persecution, a well-

15   founded fear of future persecution, based on a pattern and

16   practice of persecution of ethnic Chinese Christians, see

17   8 C.F.R. § 208.13(b)(2) (providing that an applicant for

18   asylum shall not be required to show that he will be singled

19   out individually for persecution if he establishes that

20   there is a pattern or practice of persecution of a group of

21   similarly situated persons); Mufied v. Mukasey, 508 F.3d 88,

22   91 (2d Cir. 2007), substantial evidence supports the BIA’s


                                    3
 1   determination that Hidavat did not establish     this pattern

 2   or practice in Indonesia, see Santoso v. Holder, 580 F.3d

 3   110 (2d Cir. 2009).     Furthermore, Hidavat’s contention that

 4   the BIA engaged in improper fact-finding in determining that

 5   there was no pattern or practice is without merit, as the

 6   BIA merely applied the legal standard as to what constitutes

 7   a “pattern or practice” to the evidence in Hidavat’s case.

 8   See 8 C.F.R. § 1003.1(d)(3)(ii); Wallace v. Gonzales, 463

 9   F.3d 135, 141 (2d Cir. 2006); see also Cubillos v. Holder,

10   565 F.3d 1054, 1058-59 (8th Cir. 2009) (concluding that the

11   BIA did not exceed its authority when it made a legal

12   conclusion as to whether the record facts established

13   persecution).

14       Because Hidavat did not establish past persecution or a

15   well-founded fear of future persecution, the agency did not

16   err in denying his applications for asylum and withholding

17   of removal.     Moreover, because Hidavat’s CAT claim was based

18   on the same factual predicate, he similarly failed to meet

19   his burden for that form of relief.     See Xue Hong Yang v.

20   U.S. Dep’t of Justice, 426 F.3d 520, 522-23 (2d Cir. 2005).

21       For the foregoing reasons, the petition for review is

22   DENIED.   As we have completed our review, any stay of

23   removal that the Court previously granted in this petition

                                     4
1   is VACATED, and any pending motion for a stay of removal in

2   this petition is DISMISSED as moot. Any pending request for

3   oral argument in this petition is DENIED in accordance with

4   Federal Rule of Appellate Procedure 34(a)(2), and Second

5   Circuit Local Rule 34.1(b).

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




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