    12-1647
    Suyono v. Sessions
                                                                                       BIA
                                                                                 Morace, IJ
                                                                               A077 544 057

                              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 TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

         At a stated term of the United States Court of Appeals for the
    Second Circuit, held at the Thurgood Marshall United States
    Courthouse, 40 Foley Square, in the City of New York, on the 10th day
    of May, two thousand seventeen.

    PRESENT:
              JOHN M. WALKER, JR.,
              DEBRA ANN LIVINGSTON,
              GERARD E. LYNCH,
                   Circuit Judges.
    _____________________________________

    SUYONO SUYONO,

                               Petitioner,

                         v.                                          12-1647


    JEFFERSON B. SESSIONS III, UNITED
    STATES ATTORNEY GENERAL,

                   Respondent.
    _____________________________________

    FOR PETITIONER:                          YIMIN CHEN, New York, NY.

    FOR RESPONDENT:                          JOANNA L. WATSON (Benjamin C. Mizer,
                                             Jonathan A. Robbins, on the brief),
                                             United States Department of Justice,
                                             Washington, DC.
     UPON DUE CONSIDERATION of this petition for review of a Board

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

ADJUDGED, AND DECREED that the petition for review is GRANTED, the

BIA’s decision is VACATED, and the case is REMANDED for further

proceedings consistent with this order.

     Petitioner Suyono Suyono, a native and citizen of Indonesia,

seeks review of a March 26, 2012, decision of the BIA overturning

an April 7, 2010, decision of an Immigration Judge (“IJ”) that granted

Suyono’s application for asylum.        In re Suyono Suyono, No. A077 544

057 (B.I.A. Mar. 26, 2012), rev’g No. A077 544 057 (Immigr. Ct. N.Y.C.

Apr. 7, 2010).      We assume the parties’ familiarity with the

underlying facts and procedural history of this case.

     In the posture of this case, we, following the BIA, assume the

credibility   of   the   asylum   applicant,     and   review   the   BIA’s

determination on that assumption.       See Yan Chen v. Gonzales, 417 F.3d

268, 271 (2d Cir. 2005).   Our review of the BIA’s application of legal

principles to facts is de novo.    See Secaida-Rosales v. INS, 331 F.3d

297, 307 (2d Cir. 2003).    For the reasons that follow, we conclude

that the BIA did not adequately explain its decision to reverse the

IJ’s grant of asylum.

     First, the BIA failed to sufficiently articulate its reasoning

for finding that the mistreatment Suyono had suffered in Indonesia

did not rise to the level of persecution.       Although it is true that

the BIA reviews de novo the legal question whether past instances
                                    2
of harm rise to the level of persecution, see Hui Lin Huang v. Holder,

677 F.3d 130, 135 (2d Cir. 2012), the BIA did not offer any explanation

of why, in its view, Suyono’s mistreatment did not amount to

persecution.        The    absence    of     explanation      is   particularly

problematic    in   this    context   because      “the     difference     between

harassment and persecution is necessarily one of degree that must

be decided on a case-by-case basis,” and past persecution can be

demonstrated even by “non-life-threatening violence and physical

abuse.”   Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d

Cir. 2006) (internal quotation marks omitted).               We also note that

the Board’s conclusory finding of no past persecution was sua sponte.

As the dissenting Board member pointed out, the Department of

Homeland Security, in its brief to the BIA, did not challenge the

IJ’s finding of past persecution.            Without further explanation on

this point, therefore, we cannot meaningfully review the validity

of the legal determination made by the BIA.                  See Poradisova v.

Gonzales, 420 F.3d 70, 77 (2d Cir. 2005) (“[W]e require a certain

minimum level of analysis from the IJ and BIA opinions denying asylum,

and   indeed   must   require    such       if   judicial    review   is    to   be

meaningful.”).

      Similarly, the BIA did not elaborate why it viewed the evidence

as failing to establish that the Indonesian government was unwilling

or unable to protect Suyono from violence at the hands of native

Indonesian Muslims.        Rather than explaining why the IJ’s contrary
                                        3
determination was either clearly erroneous as a factual matter or

legally incorrect, the BIA simply declared that “the record does not

establish that the Indonesian government was unable or unwilling to

protect Suyono.”      CAR at 4.   The BIA reasoned that the Indonesian

government was not unwilling or unable to protect Suyono because “the

police intervened to stop the attack on [Suyono] in 1992, and he filed

a police report following the December 1993 assault.”           Id.   However,

the BIA did not address the substance of Suyono’s testimony – the

central record evidence - regarding those assaults.                Hence it is

unclear on what grounds the BIA reached its ultimate determination

that Suyono had not established the inability or unwillingness of

the Indonesian government to protect him.

     Third,    the    BIA’s   alternative      determination   –   that,    even

assuming     Suyono   suffered    past       persecution,   circumstances     in

Indonesia had fundamentally changed – does not obviate the need for

remand because the BIA does not appear to have applied the correct

standard of review in its analysis of this issue and, in any case,

did not sufficiently explain its rationale for reversal.                   See 8

C.F.R. § 1003.1(d)(3)(i) (providing for clear error review); see

also Hui Lin Huang, 677 F.3d at 134 (applying the clear error

standard).     Though the IJ found that country conditions had not

substantially changed since Suyono’s departure from Indonesia in

August 1995, the BIA’s contrary analysis cited only to the very

portions of the Department of State’s 2009 Human Rights Report for
                                         4
Indonesia (the “Country Report”) that the IJ had pointed to in support

of his decision, without explaining why the conclusions the IJ drew

from those portions of the Country Report were incorrect.

     Lastly, we reject the Government’s attempt to support the BIA’s

inadequate analysis with rationales not advanced by the BIA.

“Inadequate analysis . . . [is] not excused by the fact that a

hypothetical adjudicator, applying the law correctly, might also

have denied the petition for asylum.”    Poradisova, 420 F.3d at 77.

“[A] denial of immigration relief stands or falls on the reasons given

by” the IJ or BIA, since “it would usurp the role of the agency for

a reviewing court to assume a hypothetical basis for the [agency’s]

determination, even one based in the record.”      Lin Zhong v. U.S.

Dep’t of Justice, 480 F.3d 104, 117 (2d Cir. 2007) (internal quotation

marks omitted).

     For the foregoing reasons, the petition for review is GRANTED,

the BIA’s decision is VACATED, and the case is REMANDED for further

proceedings consistent with this order.     As we have completed our

review, we now VACATE the stay of removal that this Court previously

granted pending resolution of this appeal.

                                FOR THE COURT:
                                Catherine O’Hagan Wolfe, Clerk




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