         12-4449
         Robinson v. Lynch
                                                                                         BIA
                                                                                    Ferris, IJ
                                                                            A099 683 689/690
                              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 29th day of March, two thousand sixteen.
 5
 6       PRESENT:
 7                ROSEMARY S. POOLER,
 8                DEBRA ANN LIVINGSTON,
 9                DENNY CHIN,
10                     Circuit Judges.
11       _____________________________________
12
13       FNU ROBINSON, FNU EINSJAH,
14                Petitioners,
15
16                           v.                                 12-4449
17                                                              NAC
18       Loretta E. Lynch, UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.*
21       _____________________________________
22
23       FOR PETITIONERS:              Jay Ho Lee, New York, NY.
24


                      *
                    The Clerk of the Court is respectfully directed to
             amend the caption to substitute Loretta E. Lynch for former
             Attorney General Eric H. Holder, Jr., as the respondent in
             this case, pursuant to Federal Rule of Appellate Procedure
             43(c)(2).
 1   FOR RESPONDENT:             Stuart F. Delery, Acting Assistant
 2                               Attorney General; John S. Hogan,
 3                               Senior Litigation Counsel; Todd J.
 4                               Cochran, Trial Attorney, United
 5                               States Department of Justice, Office
 6                               of Immigration Litigation,
 7                               Washington, D.C.
 8
 9       UPON DUE CONSIDERATION of this petition for review of a

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

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

12   is DENIED.

13       FNU Robinson and FNU Einsjah, natives and citizens of

14   Indonesia, seek review of an October 12, 2012, order of the

15   BIA affirming the October 25, 2010, decision of an

16   Immigration Judge (“IJ”) that denied Einsjah’s application

17   for asylum and withholding of removal.1      In re FNU Robinson,

18   FNU Einsjah, Nos. A099 683 689/690 (B.I.A. Oct. 12, 2012),

19   aff’g Nos. A099 683 689/690 (Immig. Ct. N.Y. City Oct. 25,

20   2010).       We assume the parties’ familiarity with the

21   underlying facts and procedural history in this case.

22       Under the circumstances of this case, we have reviewed

23   the IJ’s decision as supplemented by the BIA.       See Yan Chen




              1
              Einsjah is the lead petitioner in this case, and her
       husband Robinson is a derivative beneficiary of her asylum
       application.

                                       2
 1   v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).       The

 2   applicable standards of review are well established.         See

 3   8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d

 4   510, 513 (2d Cir. 2009).

 5       The BIA has defined persecution as a “threat to the

 6   life or freedom of, or the infliction of suffering or harm

 7   upon, those who differ in a way regarded as offensive.”

 8   Matter of Acosta, 19 I. & N. Dec. 211, 222 (BIA 1985),

 9   overruled in part on other grounds, INS v. Cardoza-Fonseca,

10   480 U.S. 421 (1987); accord Ivanishvili v. U.S. Dep’t of

11   Justice, 433 F.3d 332, 341-42 (2d Cir. 2006).       The harm must

12   be sufficiently severe, rising above “mere harassment.”

13   Ivanishvili, 433 F.3d at 341.       Here, the agency reasonably

14   found that the mistreatment Einsjah endured did not

15   constitute persecution.

16       Petitioners argue that the IJ failed to consider

17   Einsjah’s experiences in the aggregate in concluding that

18   she did not suffer past persecution.      However, the BIA

19   explicitly noted that, considered cumulatively, Einsjah’s

20   experiences did not rise to the level of persecution, and

21   the record supports that finding.      The record shows that




                                     3
 1   when she was a child, Einsjah was “punched a lot” and that

 2   boys on the school bus would touch her back and hand and not

 3   apologize, and further that she witnessed the May 1998 riots

 4   against ethnic Chinese in Jakarta from her home.    However,

 5   Einsjah was never subjected to serious physical or mental

 6   harm to the degree that her life or freedom was actively

 7   threatened, and, as a result, her unfortunate experiences in

 8   Indonesia do not establish past persecution.     See Acosta, 19

 9   I. & N. Dec. at 222.    Although “non-life threatening

10   violence and physical abuse” may constitute persecution as

11   well, the agency did not err in determining that the

12   instances in which Eisenjah endured physical harm did not

13   rise to the level of persecution when considered in the

14   aggregate.    See Beskovic v. Gonzales, 467 F.3d 223, 225-26

15   (2d Cir. 2006); Tian-Yong Chen v. INS, 359 F.3d 121, 128 (2d

16   Cir. 2004).    Moreover, the fact that Einsjah was a child

17   when some of her mistreatment occurred is only a single

18   factor to consider when determining whether she suffered

19   past persecution, and in this case, does not change the

20   analysis.     See Manzur v. U.S. Dep’t of Homeland Sec., 494

21   F.3d 281, 290 (2d Cir. 2007); Jorge-Tzoc v. Gonzales, 435

22   F.3d 146, 150 (2d Cir. 2006).


                                     4
 1       Furthermore, the agency did not err in finding that

 2   Einsjah failed to establish an objectively reasonable fear

 3   of future persecution because she did not show that anyone

 4   in Indonesia sought to harm her based either on her Chinese

 5   ethnicity or her practice of Christianity, or that her

 6   siblings in Indonesia, who are also ethnically Chinese

 7   Christians, have been harmed in any way.   See Hongsheng Leng

 8   v. Mukasey, 528 F.3d 135, 138 (2d Cir. 2008); Ramsameachire

 9   v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004); Melgar de

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

11   argues that the agency erred because it did not take into

12   account all of the background evidence she submitted;

13   however, she does not point to any evidence the agency may

14   have overlooked which was relevant to whether she had an

15   individualized well-founded fear of future persecution, and

16   we “presume that [the agency] has taken into account all of

17   the evidence . . . unless the record compellingly suggests

18   otherwise.”   See Xiao Ji Chen v. U.S. Dep’t of Justice, 471

19   F.3d 315, 336 n.17 (2d Cir. 2006).

20       Because Einsjah was unable to establish either past

21   persecution or a well-founded fear of future persecution,

22   the agency did not err in denying her application for


                                   5
 1   asylum.    See 8 C.F.R. § 1208.13(b); Ramsameachire, 357 F.3d

 2   at 178.    Moreover, because Einsjah was unable to show the

 3   objective likelihood of persecution needed to make out an

 4   asylum claim, she necessarily was unable to meet the higher

 5   standard required to succeed on a claim for withholding of

 6   removal.    See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.

 7   2006).

 8       For the foregoing reasons, the petition for review is

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

10   removal that the Court previously granted in this petition

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

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

13   oral argument in this petition is DENIED in accordance with

14   Federal Rule of Appellate Procedure 34(a)(2) and Second

15   Circuit Local Rule 34.1(b).

16                                 FOR THE COURT:
17                                 Catherine O’Hagan Wolfe, Clerk
18
19




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