         10-977-ag
         Njoo v. Holder
                                                                                       BIA
                                                                                Opaciuch, IJ
                                                                               A095 367 167
                                                                               A098 485 464
                           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 20 th day of January, two thousand eleven.
 5
 6       PRESENT: GUIDO CALABRESI,
 7                ROBERT A. KATZMANN,
 8                GERARD E. LYNCH,
 9                    Circuit Judges.
10       ______________________________________
11
12       EDDY SOEWASETIO NJOO, JENNY SETIAWATI
13       BONG,
14                Petitioners,
15
16                                                              10-977-ag
17                        v.                                    NAC
18
19
20       ERIC H. HOLDER, JR., UNITED STATES
21       ATTORNEY GENERAL,
22                Respondent. *
23       ______________________________________
24
25       FOR PETITIONERS:              Jack Herzig, Glenside, Pennsylvania.
26
27       FOR RESPONDENT:               Tony West, Assistant Attorney
28                                     General; Anthony C. Payne, Senior
29                                     Litigation Counsel; Tiffany L.


                      *
 1                 The Clerk of Court is instructed to amend the
 2           official caption in this case to conform to the listing
 3           of the parties above.
 1                                   Walters, Trial Attorney, Office of
 2                                   Immigration Litigation, Civil
 3                                   Division, United States Department
 4                                   of Justice, Washington, D.C.

 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 is

 8   DENIED.

 9         Petitioners       Eddy   Soewasetio     Njoo   and   Jenny    Setiawati

10   Bong, natives and citizens of Indonesia, seek review of a

11   February 26, 2010, decision of the BIA reaffirming, on remand,

12   the March 24, 2005, decision of Immigration Judge (“IJ”) Adam

13   Opaciuch      denying    their       applications    for   withholding     of

14   removal. 1    In re Njoo, No. A095 367 167 / A098 485 464 (B.I.A.

15   Feb. 26, 2010), aff’g No. A095 367 167 / A098 485 464 (Immig.

16   Ct.   N.Y.    City   Mar.      24,   2005).    We    assume   the    parties’

17   familiarity with the underlying facts and procedural history

18   of the case.


               1
             Despite some ambiguity as to whether both Njoo and
       Bong – as opposed to only Njoo – petitioned this Court
       for review, on balance the case initiation documents and
       subsequent briefing indicate that both petitioners sought
       review of the BIA’s decision. In any event, Bong cannot
       be prejudiced by this Court unnecessarily resolving her
       removability along with Njoo’s: she is now out of time to
       file her own petition for review and any claims that she
       could have raised in a separate petition necessarily
       would have been duplicative of those raised in this case.

                                             2
 1          Under the circumstances of this case, we review the BIA’s

 2   decision alone.        See Belortaja v. Gonzales, 484 F.3d 619, 622-

 3   23 (2d Cir. 2007).            The applicable standards of review are

 4   well established.             See 8 U.S.C. § 1252(b)(4)(B); see also

 5   Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

 6          The agency did not err in determining that Njoo and Bong

 7   failed to establish that a pattern or practice of persecution

 8   against Chinese Christians exists in Indonesia, reasonably

 9   relying on country conditions evidence in the record to find

10   that   although    Chinese       Christians      face   incidents    of   harm,

11   particularly      by    non-state      actors,   and    although    government

12   forces at times tolerate such illegal actions, the record did

13   not    establish       that    there    is   systematic,     pervasive,      or

14   organized persecution.           See Santoso v. Holder, 580 F.3d 110,

15   112 (2d Cir. 2009). 2




              2
 1           We note in passing the BIA’s assertion that Santoso
 2     held that the Board “only erred where [it has] failed to
 3     consider if there exists a pattern or practice of
 4     persecuting similarly situated persons in the applicable
 5     country.” In re Njoo, No. A095 367 167 / A098 485 464
 6     (B.I.A. Feb. 26, 2010) (emphasis added). Santoso,
 7     however, held only that the Board did not err where it
 8     successfully performed such an analysis; it announced no
 9     holding regarding other ways the Board might err in
10     pattern or practice cases.

                                             3
 1          While Njoo and Bong argue that the agency did not make an

 2   individualized       determination        on     the    basis   of    documentary

 3   evidence contained in the record, the record does not suggest

 4   that    the   agency     failed     either      to     take   into   account      all

 5   evidence presented or to base its decision on that evidence,

 6   particularly given that the BIA explicitly referenced various

 7   materials submitted as background evidence in its decision.

 8   See Gao v. Mukasey, 508 F.3d 86, 88 (2d Cir. 2007)(remanding

 9   to the BIA only after concluding that it failed to pay “any

10   attention     at    all”   to     petitioner’s         documentary     evidence).

11   Similarly,       while     Njoo     and       Bong     assert   that       the    BIA

12   impermissibly engaged in independent fact-finding, the BIA did

13   not engage in additional fact-finding, but rather upheld the

14   IJ’s findings that religious and ethnic violence had decreased

15   and    that   the   government      generally        respected       and   promoted

16   religious     freedom      and    ethnic       tolerance.        See       8   C.F.R.

17   §§ 1003.1(d)(3)(iv), 1003.3(f); Xian Tuan Ye v. DHS, 446 F.3d

18   289, 296 (2d Cir. 2006).

19          The BIA has asserted that claims of a pattern or practice

20   of persecution should be evaluated with reference to whether

21   the    alleged      persecution      is       “systematic,       pervasive,        or

22   organized,” In re A—M—, 23 I. & N. Dec. 737, 741 (BIA 2005)



                                               4
 1   (internal quotations omitted), but has yet to explain how we

 2   should apply this standard, see Santoso, 580 F.3d at 112 n.1.

 3   Nor has the Board applied that standard in the present case.

 4   However,    as    in    Santoso,       while    we   urge   the   BIA     to    begin

 5   applying and explaining the standard it has chosen, we are

 6   nonetheless “able to reach the conclusion that the agency’s

 7   decision    was    not    erroneous”          because   the     BIA     “explicitly

 8   discussed    the       pattern    or    practice      claim     and     the    record

 9   includes    substantial          documentary         evidence     regarding       the

10   conditions in petitioners’ homeland . . . .”                      Id.

11       For the foregoing reasons, the petition for review is

12   DENIED.    As we have completed our review, any stay of removal

13   that the Court previously granted in this petition is VACATED,

14   and any pending motion for a stay of removal in this petition

15   is DISMISSED as moot.            Any pending request for oral argument

16   in this petition is DENIED in accordance with Federal Rule of

17   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

18   34.1(b).

19                                           FOR THE COURT:
20                                           Catherine O’Hagan Wolfe, Clerk
21
22
23




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