         13-431
         Srimulyani v. Holder
                                                                                       BIA
                                                                               A094 046 398
                                 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 7th day of April, two thousand fourteen.
 5
 6       PRESENT:
 7                ROSEMARY S. POOLER,
 8                GERARD E. LYNCH,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _____________________________________
12
13       SYNTHIA SRIMULYANI,
14                Petitioner,
15
16                              v.                              13-431
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, Assistant Attorney
27                                        General; Daniel E. Goldman, Senior
28                                        Litigation Counsel; Samuel P. Go,
29                                        Senior Litigation Counsel, Civil
30                                        Division, Office of Immigration
31                                        Litigation, United States Department
32                                        of Justice, 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 Synthia Srimulyani, a native and citizen of

 6   Indonesia, seeks review of a January 8, 2013, decision of

 7   the BIA affirming a March 4, 2011, decision of an

 8   Immigration Judge (“IJ”) denying Srimulyani’s application

 9   for asylum, withholding of removal and relief under the

10   Convention Against Torture (“CAT”).    In re Synthia

11   Srimulyani, No. A094 046 398 (B.I.A. Jan. 8, 2013), aff’g

12   No. A094 046 398 (Immig. Ct. N.Y. City Mar. 4, 2011).     We

13   assume the parties’ familiarity with the underlying facts

14   and procedural history in this case.

15       Given the circumstances of this case, we have reviewed

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

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

18   2008) (quoting Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir.

19   2006)).   We review the factual findings underlying the BIA’s

20   determinations under the substantial evidence standard, and

21   the agency’s application of legal principles to undisputed

22   facts de novo. See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin

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

                                   2
 1       Srimulyani contends that the agency erred by

 2   “addressing the severity of each event in isolation, without

 3   considering its cumulative significance.”     Poradisova v.

 4   Gonzales, 420 F.3d 70, 79 (2d Cir. 2005).     She posits that,

 5   viewed cumulatively, the racial slurs, drunken harassment

 6   and sexual advances inflicted upon her constituted

 7   persecution.

 8       “[P]ersecution is the infliction of suffering or harm

 9   upon those who differ on the basis of a protected statutory

10   ground.”   Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d

11   332, 341 (2d Cir. 2006).    At the other end of the spectrum,

12   “mere annoyance and distress . . . characterize harassment.”

13   Id. at 342.    The difference “is necessarily one of degree,”

14   id. at 341, which much be measured “with regard to the

15   context in which the mistreatment occurs.”     Beskovic v.

16   Gonzales, 467 F.3d 223, 226 (2d Cir. 2006).

17       Here, the IJ and BIA put Srimulyani’s experiences on

18   the harassment end of the spectrum.    This conclusion was

19   reasonable.    Srimulyani described mistreatment that could

20   “‘vex, trouble, or annoy continually or chronically,’” but

21   would not cause physical or mental “suffering or harm.”

22   Ivanishvili, 433 F.3d at 341 (quoting Webster’s 3d New Int’l


                                    3
 1   Dictionary 1031 (1981)).     The agency focused on the two

 2   incidents of unwanted sexual attention that Srimulyani

 3   herself identified as “[w]hat happened to [her] personally

 4   that made [her] think Indonesia was not safe.”     In rejecting

 5   Srimulyani’s claim, the agency properly considered the

 6   cumulative impact of these incidents and reasonably

 7   concluded that this impact did not constitute persecution.

 8   Although petitioner asserts that the BIA failed to address

 9   the cumulative effect of the lifelong harassment she

10   suffered, petitioner identifies no additional instances of

11   mistreatment that could rise, in combination with these two

12   incidents, to the level of persecution.     See id. (explaining

13   that persecution “includes more than threats to life and

14   freedom,” but “does not encompass mere harassment” (internal

15   quotation marks omitted)).

16        Because Srimulyani failed to demonstrate past

17   persecution, she was required to make an independent showing

18   that she would be subjected to harm upon her return to

19   Indonesia.   8 C.F.R. § 1208.13(b)(1).    Srimulyani could do

20   this by demonstrating either that she would be singled out

21   for persecution or that there existed a pattern or practice

22   of persecution of those similarly situated.     8 C.F.R. §

23   1208.13(b)(2).   The agency did not err in concluding that

                                     4
 1   Srimulyani failed to establish either circumstance.     As the

 2   IJ noted, Srimulyani’s claim was undercut by the fact that

 3   her mother, brother, and two children continue to live as

 4   practicing Christians in Indonesia without being harmed.

 5   Srimulyani similarly failed to carry her burden of

 6   establishing a pattern or practice of persecution against

 7   the Chinese in Indonesia.   See Santoso v. Holder, 580 F.3d

 8   110, 112 (2d Cir. 2009).

 9       Srimulyani asks us to hold that because ethnic Chinese

10   were historically a “disfavored group” in Indonesia, a lower

11   level of individualized risk is required to show a

12   well-founded fear of future persecution.   Sael v. Ashcroft,

13   386 F.3d 922, 927 (9th Cir. 2004).   Srimulyani raised this

14   argument before the IJ, but not the BIA.   “[W]hen an

15   applicant for asylum or withholding of removal has failed to

16   exhaust an issue before the BIA, and that issue is,

17   therefore, not addressed in a reasoned BIA decision, [this

18   Court is], by virtue of the ‘final order’ requirement of

19   § 1252(d)(1), usually unable to review the argument.”     Lin

20   Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 122 (2d Cir.

21   2007).   Because Srimulyani’s “disfavored group” claim is

22   unexhausted, we will not consider it.   Id. at 107 n.1

23   (noting that because issue exhaustion in asylum cases is

                                   5
 1   mandatory, though not jurisdictional, “[i]f the government

 2   points out to the appeals court that an issue relied on

 3   before the court by a petitioner was not properly raised

 4   below, the court must decline to consider that issue” except

 5   in extraordinary circumstances).

 6       Finally, as Srimulyani was unable to meet her burden of

 7   proof for asylum, she necessarily failed to meet the higher

 8   burden required to succeed on a claim for withholding of

 9   removal, see Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.

10   2006); and she does not challenge the denial of relief under

11   the CAT.

12       For the foregoing reasons, the petition for review is

13   DENIED.

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




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