         10-668-ag
         Sunherland v. Holder
                                                                                       BIA
                                                                                 Laforest, IJ
                                                                               A097 700 830

                                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 24th day of February, two thousand eleven.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                ROBERT D. SACK,
 9                DEBRA ANN LIVINGSTON,
10                       Circuit Judges.
11       _______________________________________
12
13       HOPELY SUNHERLAND,
14                Petitioner,
15
16                         v.                                   10-668-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:                 H. Raymond Fasano, Madeo & Fasano,
24                                       New York, New York.
25
26       FOR RESPONDENT:                 Tony West, Assistant Attorney
27                                       General; Lyle D. Jentzer, Senior
28                                       Litigation Counsel; Paul F. Stone,
29                                       Trial Attorney, Office of
30                                       Immigration Litigation, Civil
31                                       Division, United States Department
32                                       of Justice, Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

 2   decision of the Board of Immigration Appeals (“BIA”), it is

 3   hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

 4   review is DENIED.

 5       Petitioner Hopely Sunherland, a native and citizen of

 6   Indonesia, seeks review of a January 29, 2010, decision of

 7   the BIA, affirming the March 5, 2008, decision of

 8   Immigration Judge (“IJ”) Brigitte Laforest, denying his

 9   application for asylum, withholding of removal, and relief

10   under the Convention Against Torture (“CAT”).     In re Hopely

11   Sunherland, No. A097 700 830 (B.I.A. Jan. 29, 2010), aff’g

12   No. A097 700 830 (Immig. Ct. N.Y. City Mar. 5, 2008).     We

13   assume the parties’ familiarity with the underlying facts

14   and procedural history of the case.

15       Under the circumstances of this case, we review both

16   the IJ’s and the BIA’s decisions 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       The agency reasonably found that Sunherland, who does

22   not claim to have suffered past persecution, failed to


                                     2
 1   establish that he would be singled out for persecution based

 2   on his Seventh Day Adventist religion if he returned to

 3   Indonesia.    See 8 C.F.R. §§ 208.13(b)(2), 208.16(b)(2); see

 4   also Mufied v. Mukasey, 508 F.3d 88, 91 (2d Cir. 2007).

 5   Sunherland based his claim on an incident in which he

 6   witnessed two individuals ask for the pastor of a church he

 7   was attending and state that they did not want services to

 8   continue.    Sunherland testified that he was not threatened

 9   or mistreated during this event, or at any other time, and

10   that the police began guarding his church in 2000 and

11   continued to do so at the time of his hearing in 2008.    As

12   Sunherland’s testimony and evidence did not indicate that he

13   would be singled out for persecution, the agency did not err

14   in finding that he failed to demonstrate an objectively

15   reasonable fear of persecution.     See Jian Xing Huang v. INS,

16   421 F.3d 125, 129 (2d Cir. 2005).

17       Furthermore, the agency examined the evidence

18   Sunherland submitted and reasonably found that he failed to

19   establish a pattern or practice of persecution of Seventh

20   Day Adventists similarly situated to him.     See Mufied, 508

21   F.3d at 91; see also Santoso v. Holder, 580 F.3d 110, 112

22   (2d Cir. 2009).    As the BIA found, the State Department’s


                                    3
 1   2007 International Religious Freedom Report for Indonesia

 2   did not indicate any suppression of Seventh Day Adventists

 3   and stated that the Indonesian government generally respects

 4   freedom of religion.   The agency also reasonably considered

 5   Sunderland’s fear of persecution to be diminished because

 6   his parents and siblings, who are also practicing Seventh

 7   Day Adventists, continue to live in Indonesia without

 8   incurring any harassment or mistreatment.       See Melgar de

 9   Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999).

10       Furthermore, the agency sufficiently considered all of

11   the evidence Sunherland submitted and adequately explained

12   its findings, as, in its decision, the BIA explicitly relied

13   on and discussed the evidence in the record, including the

14   2007 State Department Report.       See Wei Guang Wang v. BIA,

15   437 F.3d 270, 275 (2d Cir. 2006).

16       Lastly, Sunherland asserts that the agency erred by not

17   discussing each of the Matter of Mogharrabi elements when it

18   found that he failed to establish his eligibility for

19   asylum.   See 19 I. & N. Dec. 439, 445 (BIA 1987).     However,

20   although the agency did not discuss Mogharrabi, it found

21   that Sunherland failed to meet the first of the four

22   Mogharrabi elements: that he possessed a belief that a


                                     4
 1   persecutor sought to overcome by means of punishment.      See

 2   id.

 3         Accordingly, because the agency’s determination that

 4   Sunherland failed to establish a well-founded fear of future

 5   persecution is supported by substantial evidence, see

 6   8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of

 7   Homeland Sec., 494 F.3d 281, 289 (2d Cir. 2007), the agency

 8   did not err in denying his asylum application.   Because

 9   Sunherland was unable to show the objective likelihood of

10   persecution needed to make out an asylum claim based on his

11   Seventh Day Adventist beliefs, he was necessarily unable to

12   meet the higher standard required to succeed on a claim for

13   withholding of removal because both claims rested on the

14   same factual predicate.   See Paul v. Gonzales, 444 F.3d 148,

15   156 (2d Cir. 2006).   Sunherland does not raise any challenge

16   to the agency’s denial of his CAT claim.

17           For the foregoing reasons, the petition for review is

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

19   removal that the Court previously granted in this petition

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

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

22   oral argument in this petition is DENIED in accordance with


                                   5
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
6




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