         10-3693-ag                                                                    BIA
         Pekoenegoro v. Holder                                                    Rohan, IJ
                                                                               A097 839 070
                                                                               A097 839 071
                                 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 5th day of October, two thousand eleven.
 5
 6       PRESENT:
 7                JOSEPH M. MCLAUGHLIN,
 8                GUIDO CALABRESI,
 9                RICHARD C. WESLEY,
10                        Circuit Judges.
11       _________________________________________
12
13       FRANGKY PEKOENEGORO, MARIA SINTYA DEWI,
14                Petitioners,
15
16                          v.                                  10-3693-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONERS:                 Linda Kenepaske, New York, New York.
24
25       FOR RESPONDENT:                  Tony West, Assistant Attorney
26                                        General; Anthony W. Norwood, Senior
27                                        Litigation Counsel; Micheline
28                                        Hershey, Attorney, United States
29                                        Department of Justice, Office of
30                                        Immigration Litigation, Washington,
31                                        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       Frangky Pekoenegoro and Maria Sintya Dewi, natives and

 6   citizens of Indonesia, seek review of an August 17, 2010,
 7   order of the BIA affirming the December 15, 2008, decision
 8   of Immigration Judge (“IJ”) Patricia A. Rohan, which denied

 9   their applications for asylum, withholding of removal and

10   relief under the Convention Against Torture (“CAT”).      In re
11   Frangky Pekoenegoro and Maria Sintya Dewi, Nos. A097 839

12   070/071 (B.I.A. Aug. 17, 2010), aff’g Nos. A097 839 070/071

13   (Immig. Ct. N.Y. City Dec. 15, 2008).   We assume the
14   parties’ familiarity with the underlying facts and

15   procedural history in this case.

16       Under the circumstances of this case, we have reviewed
17   the IJ’s decision as supplemented by the BIA’s decision.

18   See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
19   The applicable standards of review are well-established.
20   See Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

21       The only issues before us are Petitioners’ eligibility
22   for withholding of removal and CAT relief.   The agency
23   reasonably determined that Pekoenegoro and Dewi failed to
24   demonstrate past persecution or a well-founded fear of

25   future persecution.   As the agency found, the harm
                                   2
 1   Pekoenegoro and Dewi described — including taunts and other

 2   verbal abuse, isolated physical harm, including
 3   Pekoenegoro’s 1999 assault, two instances of sexual

 4   harassment of Dewi, and Dewi’s detention by government
 5   officers when she tried to obtain a passport — was

 6   insufficient, considered either individually or in the
 7   aggregate, to constitute persecution, as neither Pekoenegoro
 8   nor Dewi was subjected to serious physical or mental harm.

 9   See Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341-

10   42 (2d Cir. 2006) (in order for harm to constitute
11   persecution, it must be sufficiently severe, rising above

12   “mere harassment”); Matter of Acosta, 19 I. & N. Dec. 211,

13   222 (BIA 1985), overruled, in part, on other grounds, INS v.
14   Cardoza-Fonseca, 480 U.S. 421 (1987).   Moreover, with the

15   exception of Dewi’s brief detention, Petitioners were

16   consistently harmed by other Indonesians, and not by, or
17   with the consent of, the Indonesian government.      See Acosta,

18   19 I. & N. Dec. at 222.
19       Because Pekoenegoro and Dewi did not establish past
20   persecution, they are not entitled to a presumption of

21   future persecution.   See 8 C.F.R. § 208.16(b)(1).    Although
22   Petitioners argue, independent from their claim of past

23   persecution, a pattern or practice of persecution of ethnic
24   Chinese Christians, see 8 C.F.R. § 208.16(b)(2) (providing

                                   3
 1   that an applicant for asylum shall not be required to show

 2   that he will be singled out individually for persecution if
 3   he establishes that there is a pattern or practice of

 4   persecution of a group of similarly situated persons);
 5   Mufied v. Mukasey, 508 F.3d 88, 91 (2d Cir. 2007),

 6   substantial evidence supports the BIA’s determination that
 7   Pekoenegoro and Dewi did not establish a pattern or practice
 8   in Indonesia, see Santoso v. Holder, 580 F.3d 110 (2d Cir.

 9   2009).

10       Because Pekoenegoro and Dewi did not establish past
11   persecution, a likelihood of future persecution, or a

12   pattern or practice of persecution, the agency did not err

13   in denying their application for withholding of removal.
14   See 8 C.F.R. § 208.16(b)(1), (2).   Moreover, because

15   Petitioners’ CAT claim was based on the same factual

16   predicate, they similarly failed to meet their burden for
17   that form of relief.   See Xue Hong Yang v. U.S. Dep’t of

18   Justice, 426 F.3d 520, 522-23 (2d Cir. 2005).
19       For the foregoing reasons, the petition for review is

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

21   removal that the Court previously granted in this petition

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

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

24   oral argument in this petition is DENIED in accordance with

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

2   Circuit Local Rule 34.1(b).

3                                 FOR THE COURT:
4                                 Catherine O’Hagan Wolfe, Clerk
5




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