         10-4973-ag
         Benny v. Holder
                                                                                        BIA
                                                                                   Nelson, IJ
                                                                               A099 939 077
                                                                               A099 939 027
                                                                               A099 939 078
                            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 twelve.
 5
 6       PRESENT:
 7                PIERRE N. LEVAL,
 8                JOSÉ A. CABRANES,
 9                RAYMOND J. LOHIER, JR.,
10                     Circuit Judges.
11       _____________________________________
12
13       FNU BENNY, ALICE HARIYANTO,
14       DYLAN SALIM, AKA DILLON SALIM,
15                Petitioners,
16
17                         v.                                   10-4973-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _____________________________________
23
24       FOR PETITIONERS:              Jack Herzig, Wyncote, Pennsylvania.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; James A Hunolt, Senior
28                                     Litigation Counsel; Sarah L. Vuong,
 1                            Trial Attorney, Office of
 2                            Immigration Litigation, United
 3                            States Department of Justice,
 4                            Washington, D.C.
 5
 6       UPON DUE CONSIDERATION of this petition for review of a

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

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

 9   review is DENIED.

10       Fnu Benny, Alice Hariyanto, and Dylan Salim, natives

11   and citizens of Indonesia, seek review of a November 17,

12   2010, decision of the BIA affirming the March 17, 2009,

13   decision of an Immigration Judge (“IJ”) denying their

14   application for asylum and withholding of removal.    In re

15   Benny Fnu, Alice Hariyanto, Dylan Salim, aka Dillon Salim,

16   Nos. A099 939 077/027/078 (B.I.A. Nov. 17, 2010), aff’g Nos.

17   A099 939 077/027/078 (Immig. Ct. N.Y. City Mar. 17, 2009).

18   We assume the parties’ familiarity with the underlying facts

19   and procedural history of this case.

20       Under the circumstances of this case, we have reviewed

21   the IJ’s decision as modified by the BIA decision.    See Xue

22   Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d

23   Cir. 2005).    The applicable standards of review are well-

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

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

                                    2
 1       As preliminary matters, because Petitioners do not

 2   challenge the agency’s determination that their asylum

 3   applications were untimely under 8 U.S.C. § 1158(a)(2)(B),

 4   and because Petitioners do not argue that they are eligible

 5   for relief under the Convention Against Torture (“CAT”), we

 6   do not address those claims.   Accordingly, we address only

 7   the agency’s denial of withholding of removal, and conclude

 8   that the agency reasonably determined that Petitioners

 9   failed to sustain their burden of demonstrating their

10   eligibility for this form of relief.   See Joaquin-Porras v.

11   Gonzales, 435 F.3d 172, 181 (2d Cir. 2006).

12       Although the agency failed to evaluate explicitly the

13   cumulative impact of the incidents Benny and Hariyanto

14   experienced in Indonesia, we find that remand would be

15   futile.   See Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d

16   281, 289-90 (2d Cir. 2007) (providing that the agency should

17   evaluate the cumulative impact of an applicant’s

18   experiences, but recognizing that “even if an IJ’s decision

19   contains errors, the decision will not be vacated and

20   remanded if doing so would be futile”).   We have recognized

21   that a valid past persecution claim can be based on harm

22   other than threats to life or freedom, “includ[ing] non-


                                    3
 1   life-threatening violence and physical abuse,” Beskovic v.

 2   Gonzales, 467 F.3d 223, 226 n.3 (2d Cir. 2006) (citing Tian-

 3   Yong Chen v. INS, 359 F.3d 121, 128 (2d Cir. 2004)), but the

 4   harm must be sufficiently severe, rising above “mere

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

 6   332, 341 (2d Cir. 2006).   Furthermore, “[w]e have emphasized

 7   that persecution is an extreme concept that does not include

 8   every sort of treatment our society regards as offensive.”

 9   Mei Fun Wong v. Holder, 633 F.3d 64, 72 (2d Cir. 2011)

10   (internal quotation marks and citations omitted).

11       In this case, the agency reasonably concluded

12   Hariyanto’s presence during an incident at her university,

13   in which individuals damaged campus fences and threatened to

14   burn the university, and Hariyanto and Benny’s presence near

15   two bombings, in which they were not injured, did not

16   establish past persecution, as general violence does not

17   constitute persecution.    See Melgar de Torres v. Reno, 191

18   F.3d 307, 314 n.3 (2d Cir. 1999).   The agency also

19   reasonably concluded that the incident in which individuals

20   threw stones at Hariyanto’s house, rattled fences, and

21   shouted anti-Chinese provocations, and the incident in which

22   individuals damaged the front mirror of Hariyanto’s car, did


                                    4
 1   not establish past persecution, as she did not testify that

 2   she was beaten or otherwise physically hurt during these

 3   incidents, and because general crime conditions are not

 4   grounds for asylum and unfulfilled threats alone are

 5   insufficient to demonstrate past persecution.   See Melgar de

 6   Torres, 191 F.3d at 314; Tian-Yong Chen, 359 F.3d at 128;

 7   see also Ci Pan v. U.S. Att’y General, 449 F.3d 408, 412-13

 8   (2d Cir. 2006).   Finally, contrary to Petitioners’ argument

 9   that the BIA failed to consider an incident in which Benny

10   was beaten and cut with a knife, the BIA explicitly

11   referenced Benny’s testimony regarding his physical assault,

12   and reasonably concluded that this incident did not rise to

13   the level of persecution.   See Ivanishvili, 433 F.3d at 341;

14   see also Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d

15   315, 338 n.17 (2d Cir. 2006) (Presuming that the agency has

16   “taken into account all of the evidence before [it], unless

17   the record compellingly suggests otherwise”).   Accordingly,

18   unlike those cases in which we have remanded for the agency

19   to evaluate an alien’s claim of past harm cumulatively,

20   remand here would be futile, as Hariyanto did not testify to

21   having suffered physical, mental, or economic harm, and the

22   harm to which Benny did testify was not so severe as to

23   constitute persecution. See, e.g., Manzur, 494 F.3d at 285-
                                   5
 1   88 (Bangladeshi applicant and her children suffered post-

 2   traumatic stress disorder after applicant’s husband was

 3   removed from their home and killed during a coup, and she

 4   and her children were subjected to twelve years of harm,

 5   including house arrest, attempted rape, death threats,

 6   economic deprivation, government surveillance, denial of

 7   medical care, and restriction on travel); Edimo-Doualla v.

 8   Gonzales, 464 F.3d 276, 279-80 (2d Cir. 2006) (petitioner

 9   was detained and beaten by Cameroonian police on five

10   occasions); Poradisova v. Gonzales, 420 F.3d 70, 74-75 (2d

11   Cir. 2005) (petitioner’ business was burned down and they

12   were subjected to years of harassment, threats, and beatings

13   in Belarus because they were Jewish).   Ultimately, even

14   considering in the aggregate the harm Hariyanto and Benny

15   endured in Indonesia, their experience was insufficiently

16   severe to compel a reasonable fact-finder to conclude,

17   contrary to the agency, that they suffered past persecution,

18   8 U.S.C. § 1252(b)(4)(B). Cf. Manzur, 494 F.3d at 285-88;

19   Edimo-Doualla, 464 F.3d at 279-80; Poradisova, 420 F.3d at

20   74-75.

21       Moreover, because the agency reasonably determined that

22   Petitioners had not suffered past persecution, they were not

23   entitled to a presumption that they would face persecution
                                  6
 1   if returned to Indonesia.    See 8 C.F.R. § 1208.16(b)(1).

 2   Absent a showing of past persecution, an applicant for

 3   withholding of removal must show that it is “more likely

 4   than not” that she would suffer future persecution based on

 5   a statutory ground if returned to the country of removal.

 6   8 C.F.R. § 1208.16(b)(2).    As the IJ found, the country

 7   conditions evidence in the record indicated that violence

 8   against Chinese and Christians in Indonesia had decreased,

 9   and the Indonesian government has tried to promote ethnic

10   and religious tolerance.    Indeed, the U.S. Department of

11   State’s 2008 Human Rights Practices Report for Indonesia

12   indicates that the Indonesian government “officially

13   promotes racial and ethnic tolerance,” and that “instances

14   of discrimination and harassment of ethnic Chinese continued

15   to decline compared with previous years [as] recent reforms

16   increased religious and cultural freedoms.”       Thus, the IJ

17   did not err in finding that Petitioners failed to sustain

18   their burden of demonstrating a likelihood of persecution in

19   Indonesia.

20       Moreover, contrary to Petitioners’ argument, the agency

21   did not err in rejecting their “pattern or practice” claim.

22   See 8 C.F.R. § 1208.16(b)(2).       As we have previously

23   determined, a petitioner failed to establish a pattern or

                                     7
 1   practice of persecution against Christians in Indonesia,

 2   noting that the finding was supported by several U.S.

 3   Department of State and organizational reports on conditions

 4   in Indonesia.     See Santoso v. Holder, 580 F.3d 110, 112 (2d

 5   Cir. 2009).     Here, similarly, the agency reasonably found

 6   that the country conditions evidence in the record, which

 7   included several U.S. Department of State and organizational

 8   reports, indicated that the Indonesian government generally

 9   respected religious freedom, and had instituted reforms

10   intended to promote religious and cultural tolerance.

11   Although Petitioners argue that the agency erred by relying

12   on U.S. State Department reports to the exclusion of other

13   evidence, such reports are “usually the best available

14   source of information on country conditions.” Xiao Ji Chen,

15   471 F.3d at 342 (holding that the weight afforded to State

16   Department country reports lies largely within the

17   discretion of the agency); see also Santoso, 580 F.3d at 112

18   (finding no error in agency’s determination based on U.S.

19   State Department reports).     Thus, in light of the record

20   evidence, the agency did not err in finding that Petitioners

21   failed to demonstrate a pattern or practice of persecution

22   against Christians in Indonesia.     See Santoso, 580 F.3d at

23   112.

                                     8
1        For the foregoing reasons, the petition for review is

2    DENIED.   As we have completed our review, any stays of

3    removal that the Court previously granted in this petition

4    are VACATED, and any pending motion for a stays of removal

5    in this petition are DISMISSED as moot.   Any pending request

6    for oral argument in this petition is DENIED in accordance

7    with Federal Rule of Appellate Procedure 34(a)(2), and

8    Second Circuit Local Rule 34.1(b).

 9                               FOR THE COURT:
10                               Catherine O’Hagan Wolfe, Clerk
11
12




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