     16-50
     Lay v. Sessions
                                                                                        BIA
                                                                               Balasquide, IJ
                                                                               A205 221 932

                            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 TO 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 for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   21st day of June, two thousand seventeen.
 5
 6   PRESENT:
 7            JOSÉ A. CABRANES,
 8            BARRINGTON D. PARKER,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   DICKY ALEXANDER LAY,
14            Petitioner,
15
16                     v.                                            16-50
17                                                                   NAC
18   JEFFERSON B. SESSIONS III, UNITED
19   STATES ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Armin A. Skalmowski, Alhambra, CA.
24
25   FOR RESPONDENT:                     Benjamin Mizer, Principal Deputy
26                                       Assistant Attorney General; Douglas
27                                       Ginsburg,    Assistant     Director;
28                                       Timothy Bo Stanton, Trial Attorney,
29                                       Office of Immigration Litigation,
30                                       United States Department of Justice,
31                                       Washington, DC.
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 is

4    DENIED.

5           Petitioner Dicky Alexander Lay, a native and citizen of

6    Indonesia, seeks review of a December 9, 2015, decision of the

7    BIA, affirming a May 21, 2014, decision of an Immigration Judge

8    (“IJ”) denying Lay’s application for asylum, withholding of

9    removal, and relief under the Convention Against Torture

10   (“CAT”).    In re Dicky Alexander Lay, No. A205 221 932 (B.I.A.

11   Dec. 9, 2015), aff’g No. A205 221 932 (Immig. Ct. N.Y. City May

12   21, 2014).      We assume the parties’ familiarity with the

13   underlying facts and procedural history in this case.

14          Under the circumstances of this case, we have reviewed the

15   decisions of both the BIA and the IJ “for the sake of

16   completeness.”     Wangchuck v. Dep’t of Homeland Sec., 448 F.3d

17   524, 528 (2d Cir. 2006).      The applicable standards of review

18   are well established.       See 8 U.S.C. § 1252(b)(4)(B); Yanqin

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

20     I.     Past Persecution

21          We find no error in the agency’s conclusion that Lay’s past

22   harm did not rise to the level of persecution.    Persecution can

23   be harm other than threats to life or freedom, including
                                       2
1    non-life-threatening violence and physical abuse, Beskovic v.

2    Gonzales, 467 F.3d 223, 226 n.3 (2d Cir. 2006), but the harm

3    must be sufficiently severe to rise above “mere harassment,”

4    Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d Cir.

5    2006).    In evaluating a claim of persecution, the agency is

6    required to consider the “cumulative significance” of the

7    alleged incidents as opposed to the severity of each incident

8    in isolation.   Poradisova v. Gonzales, 420 F.3d 70, 79-80 (2d

9    Cir. 2005).

10       The    agency   reasonably       concluded   that   Lay’s   past

11   experiences in Indonesia did not amount to persecution.          Id.

12   Lay identified five incidents of past harm spanning a ten-year

13   period and ranging from a bloody nose from elementary school

14   classmates and being spat on, to an attack on his temple and

15   a physical assault.    Although these are clearly regrettable

16   incidents, we agree with the agency’s conclusion that, even

17   cumulatively, the incidents lacked the severity to amount to

18   persecution.    See Mei Fun Wong v. Holder, 633 F.3d 64, 72 (2d

19   Cir. 2011) (“We have emphasized that persecution is an extreme

20   concept that does not include every sort of treatment our

21   society regards as offensive.” (internal quotation marks and

22   citations omitted)); Jian Qiu Liu v. Holder, 632 F.3d 820, 822

23   (2d Cir. 2011) (finding no error in BIA’s conclusion that
                                      3
1    applicant who was beaten prior to a two-day detention did not

2    establish persecution because the injuries “required no formal

3    medical attention and had no lasting physical effect”).

4      II. Well-Founded Fear of Future Persecution

5        Nor do we find any error in the agency’s conclusion that

6    Lay failed to demonstrate a well-founded fear of persecution.

7    To do so, an applicant must show “that he subjectively fears

8    persecution” and that “his fear is objectively reasonable.”

9    Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).

10   “An asylum applicant can show a well-founded fear of future

11   persecution in two ways: (1) by demonstrating that he or she

12   ‘would   be    singled   out   individually   for   persecution’    if

13   returned, or (2) by proving the existence of a ‘pattern or

14   practice      in   [the] . . . country   of   nationality . . . of

15   persecution of a group of persons similarly situated to the

16   applicant’ and establishing his or her ‘own inclusion in, and

17   identification with, such group.’”       Y.C. v. Holder, 741 F.3d

18   324, 332 (2d Cir. 2013) (quoting 8 C.F.R. § 1208.13(b)(2)(iii)).

19       Lay argues that there is a pattern or practice of

20   persecution of ethnic Chinese Buddhists in Indonesia.              The

21   agency reasonably concluded that Lay failed to meet his burden

22   of establishing a pattern or practice.        He presented no

23   evidence that ethnic Chinese Indonesians who practice Buddhism
                                        4
1    face systemic persecution in Indonesia.       See Jian Xing Huang

2    v. INS, 421 F.3d 125, 129 (2d Cir. 2005); In re A-M-, 23 I. &

3    N. Dec. 737, 741 (B.I.A. 2005) (defining pattern or practice

4    as the “systemic or pervasive” persecution of a group); see also

5    Mufied v. Mukasey, 508 F.3d 88, 92-93 (2d Cir. 2007) (accepting

6    BIA’s standard as reasonable, while noting that “[w]ithout

7    further elaboration [the standard does not make clear] how

8    systemic, pervasive, or organized persecution must be before

9    the Board would recognize it as a pattern or practice”).

10   Contrary to Lay’s representation that the record

11   “overwhelmingly shows that the Muslims target religious and

12   ethnic minorities in Indonesia,” the record contains one

13   article from 2010 that discusses discrimination against

14   Chinese-Indonesians, and two articles that report on the

15   European Parliament’s condemnation of violence in Indonesia

16   against religious minorities.       Otherwise, the evidence does

17   not identify incidents of persecution (let alone a pattern of

18   practice of persecution) against ethnic Chinese or practicing

19   Buddhists.   Rather, some articles describe a rise of

20   “Anti-Christian extremism in Indonesia” and attacks on churches

21   by radical Islamist groups.   Other articles describe clashes

22   between Muslims and Christians regarding the construction of

23   a church in the Java province and instances of
                                     5
1    Muslim-against-Muslim violence.     Accordingly, the agency did

2    not err in determining that Lay failed to demonstrate a pattern

3    and practice of persecution of Chinese Buddhists in Indonesia.

4    See Santoso v. Holder, 580 F.3d 110, 112 (2d Cir. 2009) (denying

5    petition where agency considered background materials and

6    rejected pattern or practice claim regarding ethnic Chinese in

7    Indonesia).

8        For the foregoing reasons, the petition for review is

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

10   that the Court previously granted in this petition is VACATED,

11   and any pending motion for a stay of removal in this petition

12   is DISMISSED as moot.    Any pending request for oral argument

13   in this petition is DENIED in accordance with Federal Rule of

14   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

15   34.1(b).

16                                 FOR THE COURT:
17                                 Catherine O’Hagan Wolfe, Clerk




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