         12-883
         Fenny v. Holder
                                                                                        BIA
                                                                                  Brennan, IJ
                                                                               A 088 426 470


                            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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 18th day of September, two thousand thirteen.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                RAYMOND J. LOHIER, JR.,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _____________________________________
12
13       FNU FENNY,
14                Petitioner,
15
16                         v.                                   12-883
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               H. Raymond Fasano, New York, New
24                                     York.
25
26       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
27                                     Attorney General; Keith I. McManus,
28                                     Senior Litigation Counsel; Nairi S.
29                                     Gruzenski, Trial Attorney; Office of
 1                            Immigration Litigation, United
 2                            States Department of Justice,
 3                            Washington, D.C.
 4
 5       UPON DUE CONSIDERATION of this petition for review of a

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

 7   ORDERED, ADJUDGED, AND DECREED that the petition for review

 8   is DENIED.

 9       Petitioner Fenny, a native and citizen of Indonesia,

10   seeks review of a February 7, 2012 decision of the BIA

11   affirming the November 12, 2009, decision of an Immigration

12   Judge (“IJ”), which denied Fenny’s application for asylum,

13   withholding of removal, and relief under the Convention

14   Against Torture (“CAT”).     In re FNU Fenny, No. A088 426 470

15   (B.I.A. Feb. 7, 2012), aff’g No. A088 426 470 (Immig. Ct.

16   N.Y. City Nov. 12, 2009).    We assume the parties’

17   familiarity with the underlying facts and procedural history

18   in this case.

19       We review both the IJ’s and the BIA’s opinions “for the

20   sake of completeness.”     Zaman v. Mukasey, 514 F.3d 233, 237

21   (2d Cir. 2008).   The applicable standards of review are well

22   established.    See Yanqin Weng v. Holder, 562 F.3d 510, 513

23   (2d Cir. 2009).   Because Fenny does not challenge the

24   agency’s finding that her asylum application was untimely,



                                     2
 1   that finding is dispositive.    See Yueqing Zhang v. Gonzales,

 2   426 F.3d 540, 541 n.1 (2d Cir. 2005).   Regardless, as

 3   discussed below, Fenny has also failed to meet her burden of

 4   proof for asylum, as well as for withholding of removal and

 5   CAT relief.

 6   I.   Past Persecution

 7        Substantial evidence supports the agency’s

 8   determination that Fenny did not suffer past persecution.

 9   The agency reasonably concluded that Fenny’s brief testimony

10   that she was robbed and sexually assaulted numerous times

11   was insufficient to carry her burden of proof, particularly

12   as she had not included the incidents in her asylum

13   application and provided no detail about any of the

14   incidents.    See Yan Juan Chen v. Holder, 658 F.3d 246, 252

15   (2d Cir. 2011) (holding that the agency did not err in

16   finding that the applicant’s vague testimony was

17   insufficient to sustain her burden of proof); Xiu Xia Lin v.

18   Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (treating an

19   omission the same as an inconsistency for purposes of

20   credibility).   Nor did the agency err in finding that the

21   equally vague letter from Fenny’s father failed to

22   rehabilitate her testimony, as it did not mention any harm


                                    3
 1   she suffered.     See Biao Yang v. Gonzales, 496 F.3d 268, 273

 2   (2d Cir. 2007); Xiao Ji Chen v. U.S. Dep’t of Justice, 471

 3   F.3d 315, 341–42 (2d Cir. 2006).

 4       Furthermore, contrary to Fenny’s argument that the

 5   agency failed to consider the cumulative effect of the harm

 6   she suffered in Indonesia, the record indicates that both

 7   the IJ and the BIA listed all of the harm that Fenny alleged

 8   and, referring to it collectively, concluded that the

 9   alleged harm did not amount to persecution.    Considering the

10   harm in the aggregate, the agency reasonably found that

11   Fenny failed to establish past persecution, as she only

12   vaguely testified about being robbed and touched sexually,

13   and admitted that she was not harmed — and indeed later

14   returned without serious consequence — after leaving

15   Indonesia with her family out of safety concerns during the

16   May 1998 riots.     See Ivanishvili v. U.S. Dep’t of Justice,

17   433 F.3d 332, 341 (2d Cir. 2006) (noting that to constitute

18   persecution, the alleged past harm must rise above “mere

19   harassment”); see also Ai Feng Yuan v. U.S. Dep’t of

20   Justice, 416 F.3d 192, 198 (2d Cir. 2005) (citing Ghaly v.

21   INS, 58 F.3d 1425, 1431 (9th Cir. 1995) (“[P]ersecution is

22   an extreme concept that does not include every sort of


                                     4
 1   treatment our society regards as offensive.”)), overruled on

 2   other grounds by Shi Liang Lin v. U.S. Dep't of Justice, 494

 3   F.3d 296 (2d Cir. 2007).

 4       Finally, Fenny failed to establish that the harm she

 5   suffered was at the hands of government actors.    To the

 6   contrary, she testified that when her family escaped the

 7   1998 riots, the police assisted her family by escorting them

 8   out of the city and providing them shelter in a police camp.

 9   Cf. Ivanishvili, 433 F.3d at 342 (recognizing that private

10   acts may constitute persecution if the government is shown

11   unwilling to control such actions).

12   II. Pattern or Practice of Persecution

13       Absent the presumption of future persecution, the

14   agency reasonably found that Fenny failed to independently

15   establish a well-founded fear of persecution.     See 8 C.F.R.

16   §§ 1208.13(b)(2), 1208.16(b)(2).   Although various State

17   Department reports in the record referenced sporadic

18   incidents of religious violence and ethnic tensions, they

19   did not show a pattern or practice of violence against

20   ethnic Chinese or Buddhists.   Rather, similar to the

21   evidence presented in Santoso v. Holder, 580 F.3d 110, 112

22   (2d Cir. 2009), the evidence here indicates widespread

23   tolerance of various religions and that ethnic Chinese play

24   an increasingly important role in public life in Indonesia.
                                   5
 1       Furthermore, we reject Fenny’s contention that the

 2   Ninth Circuit’s opinion in Sael v. Ashcroft, 386 F.3d 922

 3   (9th Cir. 2004), requires a different outcome.     In that

 4   opinion, which is not binding here, the Ninth Circuit held

 5   that because ethnic Chinese were a historically “disfavored

 6   group” in Indonesia, a lower level of individualized risk

 7   was required to show a well-founded fear of future

 8   persecution.   Sael, 386 F.3d at 927.    Here, Fenny did not

 9   present the agency with any individualized evidence, other

10   than her vague testimony, suggesting that she, in

11   particular, would be subject to persecution in Indonesia.

12        Because Fenny was unable to show that she had a well-

13   founded fear of persecution, needed to make out an asylum

14   claim, she was necessarily unable to meet the higher

15   standard required to succeed on claims for withholding of

16   removal and CAT relief.   See Lecaj v. Holder, 616 F.3d 111,

17   119–20 (2d Cir. 2010).

18       For the foregoing reasons, the petition for review is

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

20   removal that the Court previously granted in this petition

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

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

23   oral argument in this petition is DENIED in accordance with
                                   6
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




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