         10-1017-ag
         Subrata v. Holder
                                                                                       BIA
                                                                                 Abrams, IJ
                                                                               A090 347 484
                                                                               A090 347 485
                                                                               A090 347 486
                              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 23rd day of June, two thousand eleven.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                REENA RAGGI,
 9                GERARD E. LYNCH,
10                 Circuit Judges.
11       _______________________________________
12
13       RIZAL ZEFANYA SUBRATA, SETIAWATI LIM,
14       NICHOLAS ZEFANYA SUBRATA,
15                Petitioners,
16
17                           v.                                 10-1017-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       ______________________________________
23
24
25       FOR PETITIONERS:              Aaron Shapiro, The Shapiro Law Firm,
26                                     New York, New York.
27
 1   FOR RESPONDENT:        Tony West, Assistant Attorney
 2                          General; Carl H. McIntyre, Jr.,
 3                          Assistant Director; Marion E.
 4                          Guyton, Trial Attorney, Office of
 5                          Immigration Litigation, Civil
 6                          Division, United States Department
 7                          of Justice, Washington, D.C.
 8
 9       UPON DUE CONSIDERATION of this petition for review of a

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

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

12   is DENIED.

13       Petitioners Rizal Zefanya Subrata, Setiawati Lim, and

14   Nicholas Zefanya Subrata, natives and citizens of Indonesia,

15   seek review of a February 23, 2010, order of the BIA

16   affirming the June 11, 2008, decision of Immigration Judge

17   (“IJ”) Steven R. Abrams denying their application for

18   asylum, withholding of removal, and relief under the

19   Convention Against Torture (“CAT”).   In re Rizal Zefanya

20   Subrata, Setiawati Lim, Nicholas Zefanya Subrata, Nos. A090

21   347 484/485/486 (B.I.A. Feb. 23, 2010), aff’g Nos. A090 347

22   484/485/486 (Immig. Ct. N.Y. City June 11, 2008).   We assume

23   the parties’ familiarity with the underlying facts and

24   procedural history of this case.

25       Under the circumstances of this case, we review the

26   IJ’s decision as supplemented by the BIA’s decision.     See


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

 2   applicable standards of review are well established.

 3   See 8 U.S.C. § 1252(b)(4)(B); Jian Hui Shao v. Mukasey, 546

 4   F.3d 138, 156-58 (2d Cir. 2008); Salimatou Bah v. Mukasey,

 5   529 F.3d 99, 110 (2d Cir. 2008).

 6       As an initial matter, we decline to review the

 7   petitioners’ CAT claim as they failed to exhaust it before

 8   the agency.   See 8 U.S.C. § 1252(d)(1) (requiring exhaustion

 9   of all administrative remedies).   Although we may consider

10   an issue not raised by an applicant in the course of an

11   appeal to the BIA when the BIA nevertheless addressed the

12   issue, Waldron v. INS, 17 F.3d 511, 515 n.7 (2d Cir. 1993),

13   the BIA did not excuse the petitioners’ failure to exhaust

14   as it explicitly noted that they did not challenge the IJ’s

15   finding that they were ineligible for CAT relief.

16   Therefore, considering the petitioner’s new arguments for

17   the first time in this Court would defeat the purpose of the

18   issue exhaustion requirement—namely, to allow the agency to

19   review its own decisions for error after having the

20   opportunity to consider the applicant’s arguments. See

21   Theodoropoulos v. INS, 358 F.3d 162, 171 (2d Cir. 2004).

22



                                   3
 1       The petitioners did, however, exhaust before the BIA

 2   their arguments that they established past persecution and a

 3   pattern or practice of persecution against non-Muslim ethnic

 4   Chinese in Indonesia.   But these arguments are unavailing.

 5       The agency reasonably found that Rizal Zefanya

 6   Subrata’s testimony that he was attacked by a mob did not

 7   establish that he was subjected to past persecution, because

 8   it determined that he did not demonstrate that the incident

 9   was serious enough to rise to the level of persecution.

10   Persecution requires that the harm suffered be sufficiently

11   severe, rising above “mere harassment.”       Ivanishvili v. U.S.

12   Dep’t of Justice, 433 F.3d 332, 341 (2d Cir. 2006).       This

13   Court has said that the difference between harassment and

14   persecution is one of degree, which must be assessed with

15   regard to “the context in which the mistreatment occurs.”

16   Beskovic v. Gonzales, 467 F.3d 223, 226 (2d Cir.

17   2006).(emphasis in original).       Accordingly, this Court has,

18   for example, cautioned the agency to be “keenly sensitive to

19   the fact that a `minor beating,’ or for that matter, any

20   physical degradation designed to cause pain, humiliation, or

21   other suffering, may rise to the level of persecution if it

22   occurred in the context of an arrest or detention on the


                                     4
 1   basis of a protected ground.”       Id.   Here, the agency

 2   reasonably considered the context of the alleged mob attack

 3   on Subrata following a soccer match while his car was

 4   sitting in traffic, including his testimony that he was hit

 5   in the face with a wooden flag pole and that his wallet was

 6   stolen, and found that the incident was not serious enough

 7   to constitute persecution.   Id.

 8       The agency also reasonably found that Setiawati Lim’s

 9   testimony that she was attacked did not establish past

10   persecution because she did not demonstrate that she was

11   attacked on account of her religion or ethnicity.       While the

12   petitioners argue that Lim was targeted and attacked because

13   she was Chinese—as evidenced by the fact that her attacker,

14   a native Indonesian, said “hey, Chinese, this what you

15   deserve”—her argument does not compel the conclusion that

16   she was attacked on account of her race.        See 8 U.S.C.

17   § 1252(b)(4)(B) (providing that the agency’s findings of

18   fact are “conclusive unless any reasonable adjudicator would

19   be compelled to conclude to the contrary”); see also Lie v.

20   Ashcroft, 396 F.3d 530, 535-36 (3d Cir. 2005) (explaining

21   that when an individual was a victim of ordinary crime, a

22   single ethnic slur did not compel the conclusion that the


                                     5
 1   attackers were motivated by ethnicity).    Instead, the agency

 2   reasonably found that she did not establish that she was

 3   attacked because of her race, but, rather, was a victim of

 4   general crime.    See Melgar de Torres v. Reno, 191 F.3d 307,

 5   314 (2d Cir. 1999) (“[G]eneral crime . . . does not lend

 6   support to an asylum claim since a well-founded fear of

 7   persecution must be on account of an enumerated ground set

 8   forth in the Act, and general crime conditions are not a

 9   stated ground.”).    Thus, the agency did not err in finding

10   that the petitioners failed to demonstrate past persecution.

11       Finally, the petitioners argue that the country

12   conditions evidence establishes that there is a pattern or

13   practice of persecution against Chinese non-Muslims in

14   Indonesia.   However, the agency properly considered the

15   evidence of country conditions and reasonably concluded that

16   there was no evidence of a pattern or practice of

17   discrimination.     See Santoso v. Holder, 580 F.3d 110, 112

18   (2d Cir. 2009) (affirming the agency’s conclusion that the

19   country conditions evidence did not establish a pattern or

20   practice of persecution of Chinese Christians in Indonesia).

21       Thus, the agency did not err in concluding that the

22   petitioners failed to establish their eligibility for asylum


                                     6
 1   as they established neither past persecution nor a well-

 2   founded fear of future persecution.     See Ramsameachire v.

 3   Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004) (stating that to

 4   establish eligibility for asylum, an applicant must

 5   establish past persecution or a well-founded fear of future

 6   persecution).    Because the petitioners were unable to meet

 7   their burden for asylum, they necessarily failed to meet the

 8   higher burden required to succeed on a claim for withholding

 9   of removal.     See Gomez v. INS, 947 F.2d 660, 665 (2d Cir.

10   1991).

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




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