     14-2377
     Sutiono v. Lynch
                                                                                        BIA
                                                                                  Poczter, IJ
                                                                               A088 479 548

                             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   2nd day of June, two thousand fifteen.
 5
 6   PRESENT:
 7            JOSÉ A. CABRANES,
 8            ROBERT D. SACK,
 9            GERARD E. LYNCH,
10                 Circuit Judges.
11   _____________________________________
12
13   EDISON SUTIONO,
14            Petitioner,
15
16                      v.                                           14-2377
17                                                                   NAC
18
19   LORETTA E. LYNCH, UNITED STATES
20   ATTORNEY GENERAL,*
21            Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                     Joshua Bardavid, New York, N.Y.
     *
      Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney
     General Loretta E. Lynch is automatically substituted for former
     Attorney General Eric H. Holder, Jr., as the Respondent in this case.
 1   FOR RESPONDENT:                   Benjamin C. Mizer, Acting Assistant
 2                                     Attorney General; Michelle G.
 3                                     Latour, Deputy Director; Victor M.
 4                                     Lawrence, Senior Litigation
 5                                     Counsel, Office of Immigration
 6                                     Litigation, United States
 7                                     Department of Justice, Washington,
 8                                     D.C.
 9
10          UPON DUE CONSIDERATION of this petition for review of a

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

12   ORDERED, ADJUDGED, AND DECREED that the petition for review is

13   DENIED.

14          Petitioner    Edison      Sutiono,    a   native   and    citizen     of

15   Indonesia, seeks review of a June 3, 2014, decision of the BIA

16   affirming an April 6, 2012, decision of an Immigration Judge

17   (“IJ”) denying Sutiono’s application for asylum, withholding

18   of removal, and relief under the Convention Against Torture

19   (“CAT”).      In re Edison Sutiono, No. A088 479 548 (B.I.A. June

20   3, 2014), aff’g No. A088 479 548 (Immig. Ct. N.Y. City Apr. 6,

21   2012).    We assume the parties’ familiarity with the underlying

22   facts and procedural history in this case.

23          Under the circumstances of this case, we have considered

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

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

26   524, 528 (2d Cir. 2006).          The applicable standards of review

                                           2
1    are well established.    8 U.S.C. § 1252(b)(4)(B); Yanqin Weng

2    v. Holder, 562 F.3d 510, 513-14 (2d Cir. 2009).        The agency did

3    not err in finding that Sutiono failed to establish past

4    persecution or a well-founded fear of persecution.

5    Past Persecution

6        We have recognized that a valid past persecution claim can

7    be based on harm other than threats to life or freedom,

8    “includ[ing]   non-life-threatening         violence   and    physical

9    abuse,” Beskovic v. Gonzales, 467 F.3d 223, 226 n.3 (2d Cir.

10   2006) (citing Tian-Yong Chen v. INS, 359 F.3d 121, 128-29 (2d

11   Cir. 2004)), but the harm must be sufficiently severe, rising

12   above “mere harassment,” Ivanishvili v. U.S. Dep’t of Justice,

13   433 F.3d 332, 341 (2d Cir. 2006).           “We have emphasized that

14   persecution is an extreme concept that does not include every

15   sort of treatment our society regards as offensive.”            Mei Fun

16   Wong v. Holder, 633 F.3d 64, 72 (2d Cir. 2011) (internal

17   quotation   marks   omitted).       Here,    the   agency    explicitly

18   considered the harm Sutiono suffered cumulatively as required,

19   see Poradisova v. Gonzales, 420 F.3d 70, 79-80 (2d Cir. 2005),

20   and reasonably concluded that, while unfortunate, the harm did

21   not constitute persecution because it did not cause him any

22   specific, significant economic or physical consequences, see
                                     3
1    Mei Fun Wong, 633 F.3d at 72; Guan Shan Liao v. U.S. Dep’t of

2    Justice, 293 F.3d 61, 70 (2d Cir. 2002).

3           The agency also did not err in alternatively finding that

4    Sutiono failed to establish that the Indonesian government was

5    unable or unwilling to protect him.            See Pan v. Holder, 777 F.3d

6    540, 543 (2d Cir. 2015) (“Private acts can . . . constitute

7    persecution if the government is unable or unwilling to control

8    such actions.”).       Sutiono only reported one incident to police,

9    and he does not cite any country conditions evidence to support

10   a finding that the police do not protect ethnic Chinese

11   Indonesians.

12          Because Sutiono did not demonstrate past persecution, he

13   was not entitled to a presumption of a well-founded fear of

14   persecution.     See 8 C.F.R. § 1208.13(b)(1).

15   Well-Founded Fear of Persecution

16          Absent   past   persecution,       an   applicant   may   establish

17   eligibility for asylum by demonstrating a well-founded fear of

18   future persecution, 8 C.F.R. § 1208.13(b)(2), which must be

19   both    subjectively      credible       and   objectively    reasonable,

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

21   The applicant must show either that he would be singled out for

22   persecution or that the country of removal has a pattern or
                                          4
1    practice   of   persecuting   similarly     situated   individuals.

2    8 C.F.R. § 1208.13(b)(2)(iii).         The agency did not err in

3    finding that Sutiono failed to demonstrate a well-founded fear

4    of persecution.

5        The    agency     reasonably       questioned    the     objective

6    reasonableness of Sutiono’s claimed fear of persecution because

7    his parents and brother had remained unharmed in Indonesia for

8    the five years between his departure from that country and his

9    merits hearing.     See Melgar de Torres v. Reno, 191 F.3d 307,

10   313 (2d Cir. 1999).    Sutiono does not challenge that finding.

11       Moreover, as the IJ noted, the U.S. State Department’s 2010

12   Human Rights Report stated that the Indonesian government

13   officially promoted ethnic tolerance and that, although some

14   institutional     discrimination       existed,     ethnic    Chinese

15   Indonesians played a role in the Indonesian economy and,

16   increasingly, in Indonesian politics.          The report did not

17   mention any incidents of violence against ethnic Chinese

18   Indonesians, despite elsewhere discussing violence against

19   other groups.

20       Accordingly, the agency did not err in finding that Sutiono

21   failed to demonstrate a well-founded fear of persecution.         See

22   Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005)
                                        5
1    (providing that a fear is not objectively reasonable if it lacks

2    “solid support” in the record and is merely “speculative at

3    best.”); see also Santoso v. Holder, 580 F.3d 110, 112 (2d Cir.

4    2009) (finding no error in the agency’s determination that there

5    was not a pattern or practice of persecution against ethnic

6    Chinese or Catholic Indonesians); In re A-M-, 23 I. & N. Dec.

7    737, 741-42 (BIA 2005).      That finding was dispositive of

8    Sutiono’s claims for asylum, withholding of removal, and CAT

9    relief because those claims were based on the same factual

10   predicate.   See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.

11   2006).

12       For the foregoing reasons, the petition for review is

13   DENIED.

14                                FOR THE COURT:
15                                Catherine O=Hagan Wolfe, Clerk




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