         10-5184-ag
         Hernadi v. Holder
                                                                                         BIA
                                                                                    Nelson, IJ
                                                                                 A089 913 064
                              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 9th day of August, two thousand twelve.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                RICHARD C. WESLEY,
 9                SUSAN L. CARNEY,
10                     Circuit Judges.
11       _________________________________________
12
13       PUDJI HERNADI
14                Petitioner,
15
16                           v.                                    10-5184-ag
17                                                                 NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _________________________________________
22
23       FOR PETITIONER:                Oleh R. Tustaniwsky, Brooklyn,
24                                      New York.
25
26       FOR RESPONDENT:                Tony West, Assistant Attorney
27                                      General; Ernesto H. Molina, Jr.,
28                                      Assistant Director; Nancy N. Safavi,
29                                      Trial Attorney, Office of
30                                      Immigration Litigation, United
31                                      States Department of Justice,
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       Petitioner Pudji Hernadi, a native and citizen of

 6   Indonesia, seeks review of a November 30, 2010, order of the

 7   BIA, affirming the April 15, 2009, decision of an

 8   Immigration Judge (“IJ”), which pretermitted his application

 9   for asylum and denied his application for withholding of

10   removal, and relief under the Convention Against Torture

11   (“CAT”).     In re Pudji Hernadi, No. A089 913 064 (B.I.A. Nov.

12   30, 2010), aff’g No. A089 913 064     (Immig. Ct. N.Y. City

13   Apr. 15, 2009).    We assume the parties’ familiarity with the

14   underlying facts and procedural history in this case.

15       Under the circumstances of this case, we have reviewed

16   both the IJ’s and BIA’s opinions “for the sake of

17   completeness.”     See Zaman v. Mukasey, 514 F.3d 233, 237 (2d

18   Cir. 2008).    The applicable standards of review are well-

19   established.     See 8 U.S.C. §1252(b)(4)(B); Yanqin Weng v.

20   Holder, 562 F.3d 510, 513 (2d Cir. 2009).

21       As an initial matter, Hernadi does not challenge the

22   agency’s pretermission of his asylum claim nor its finding


                                     2
 1   that the harm he alleged did not rise to the level of

 2   persecution.

 3       In the absence of past persecution, an applicant for

 4   withholding of removal need not demonstrate that he would be

 5   singled out for future persecution if the applicant shows:

 6   (1) “a pattern or practice of persecution of a group of

 7   persons similarly situated to the applicant;” and (2) “his

 8   or her own inclusion in and identification with such groups

 9   of persons such that it is more likely than not that [his]

10   life or freedom would be threatened.” 8 C.F.R.

11   § 1208.16(b)(2).   To the extent that Hernadi argues that the

12   agency failed to address his pattern or practice argument,

13   the record demonstrates that the agency reasonably found

14   that Hernadi failed to establish a pattern or practice of

15   persecution of Chinese non-Muslims in Indondesia.   Mufied v.

16   Mukasey, 508 F.3d 88, 92 (2d Cir. 2007).

17       Specifically, while the record demonstrates that “the

18   [Indonesian] government sometimes tolerated private actors’

19   discrimination against and abuse of individuals based on

20   their religious beliefs,” the record also states that in an

21   effort to curb violence against Chinese non-Muslims, the

22   Indonesian government has undertaken “notable efforts to


                                   3
 1   build interfaith harmony.”   Moreover, Hernadi has failed to

 2   distinguish his case from Santoso v. Holder, 580 F.3d 110,

 3   112 (2d Cir. 2009) (noting that “Indonesia is a nation state

 4   consisting approximately of 6,000 inhabited islands and

 5   that, in many places, Roman Catholicism is predominant.”);

 6   thus the agency reasonably concluded that the Indonesian

 7   government was not unable or unwilling to control violence

 8   against non-Muslim Chinese Indonesians, and that such

 9   violence did not support a pattern or practice claim.

10       The agency also reasonably noted that Hernadi’s wife

11   and children have remained in Indonesia without further

12   incident.   See Melgar de Torres v. Reno, 191 F.3d 307, 313

13   (2d Cir. 1999) (finding that where asylum applicant’s mother

14   and daughters continued to live in petitioner’s native

15   country, claim of well-founded fear was diminished); see

16   also Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir. 2005)

17   (stating that fear of persecution is diminished when “family

18   members remain in petitioner’s native country without

19   meeting harm”); see also Matter of A-E-M-, Int. Dec. 3338 at

20   *4 (finding that applicant lacked a well-founded fear, in

21   part, because his family members remained unharmed in Peru

22   since his departure).   Thus, in light of the record


                                   4
 1   evidence, and Hernadi’s inability to distinguish his claim

 2   from our ruling in Santoso, the agency reasonably found that

 3   Hernadi failed to demonstrate a pattern or practice of

 4   persecution against Chinese non-Muslims in Indonesia.     See

 5   Santoso, 580 F.3d at 112.

 6       As the agency did not err in concluding that Hernadi

 7   failed to establish a clear probability of future

 8   persecution if returned to Indonesia, it did not err in

 9   denying his application for withholding of removal or CAT

10   relief insofar as his withholding and CAT claims shared the

11   same factual predicate.     See Xue Hong Yang v. U.S. Dep’t of

12   Justice, 426 F.3d 520, 523 (2d Cir. 2006).

13       For the foregoing reasons, the petition for review is

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

15   removal that the Court previously granted in this petition

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

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

18   oral argument in this petition is DENIED in accordance with

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

20   Circuit Local Rule 34.1(b).

21                                 FOR THE COURT:
22                                 Catherine O’Hagan Wolfe, Clerk
23
24




                                     5
