     14-633
     Aggrees v. Lynch
                                                                                BIA
                                                                           Videla, IJ
                                                                        A088 996 328
                                                                        A089 253 990
                             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.

 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 11th day of August, two thousand fifteen.
 5
 6   PRESENT:
 7            RALPH K. WINTER,
 8            DENNY CHIN,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   AGGREES, NIKO,
14                 Petitioners,
15
16                      v.                                     14-633
17                                                             NAC
18
19   LORETTA E. LYNCH, UNITED STATES
20   ATTORNEY GENERAL,
21                 Respondent.
22   _____________________________________
23
24   FOR PETITIONERS:                  Joseph C. Hohenstein, Orlow, Kaplan
25                                     & Hohenstein, LLP, Philadelphia,
26                                     Pennsylvania.
27
28
 1   FOR RESPONDENT:                    Joyce R. Branda, Acting Assistant
 2                                      Attorney General; Margaret Kuehne
 3                                      Taylor, Senior Litigation Counsel;
 4                                      Kate D. Balaban, Trial Attorney,
 5                                      Office of Immigration Litigation,
 6                                      Civil Division, United States
 7                                      Department of Justice, Washington,
 8                                      D.C.
 9
10         UPON DUE CONSIDERATION of this petition for review of a

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

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

13   is DENIED.

14         Petitioners Aggrees and Niko, natives and citizens of

15   Indonesia, seek review of a December 27, 2013, decision of

16   the   BIA    affirming      a    March     8,   2012,    decision   of   an

17   Immigration       Judge   (“IJ”)    denying     their    applications    for

18   asylum,     withholding     of     removal,     and     relief   under   the

19   Convention Against Torture (“CAT”).             In re Aggrees and Niko,

20   Nos. A088 996 328/089 253 990 (B.I.A. Dec. 27, 2013), aff’g

21   Nos. A088 996 328/089 253 990             (Immig. Ct. N.Y. City Mar. 8,

22   2012).       We    assume   the     parties’     familiarity      with   the

23   underlying facts and procedural history in this case.

24         We have reviewed the IJ’s decision as supplemented by

25   the BIA.     Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.

                                           2
 1   2005).       The    applicable             standards    of    review       are     well

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

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

 4          An applicant may be eligible for asylum either due to

 5   past     persecution        or     a       well-founded       fear        of     future

 6   persecution.        8   U.S.C.         §    1158(b)(1)(A)-(B);        8    C.F.R.      §

 7   1208.13(b).        Because Niko does not challenge the agency’s

 8   denial of asylum or assert past persecution, we address past

 9   persecution only as to Aggrees.                     We find no error in the

10   agency’s     conclusion      that          she    failed     to   establish        harm

11   constituting persecution.                  Persecution is harm that occurs

12   on account of a protected ground, in this case, ethnicity or

13   religion, see 8 U.S.C. § 1158(b)(1)(B)(i), and that rises

14   above    “mere     harassment,”            Ivanishvili       v.   U.S.     Dep’t      of

15   Justice, 433 F.3d 332, 341 (2d Cir. 2006).

16          The   agency     reasonably          concluded      that     the    two     most

17   serious allegations of harm did not constitute persecution.

18   As     the   IJ    found,        there       is    no   evidence,         direct      or

19   circumstantial,         linking            Aggrees’s       sexual     assault         or

20   kidnapping to her ethnicity or religion.                      Her argument that

21   the credibility finding mandates that the agency credit her
                                                  3
 1   belief   that     the    incidents      were       ethnically       motivated     is

 2   misplaced.       Credible testimony alone is enough to satisfy a

 3   burden of proof only if it “is persuasive, and refers to

 4   specific facts sufficient to demonstrate that the applicant

 5   is a refugee,” i.e., that the harm was on account of a

 6   protected ground.            See 8 U.S.C. § 1158(b)(1)(B)(i)-(ii).

 7   Here,    there    is    no   testimony       or        evidence    linking    these

 8   incidents to a protected ground.

 9       As the agency found, there was some evidence to link

10   the remaining allegations to a protected ground (one robbery

11   occurred near a church and, in another, perpetrators said

12   “Chinese, Chinese”), but, even cumulatively, the incidents

13   did not rise to the level of persecution.                         Mei Fun Wong v.

14   Holder, 633 F.3d 64, 72 (2d Cir. 2011) (Persecution is an

15   “extreme    concept       that   does       not        include    every    sort   of

16   treatment    our       society   regards          as     offensive.”      (internal

17   quotation marks and citation omitted)).                     Here, there was no

18   physical harm, only a few instances in which Agrees was

19   touched and one in which she was threatened.                         See Jian Qiu

20   Liu v. Holder, 632 F.3d 820, 821-22 (2d Cir. 2011) (finding

21   no error in conclusion that beating by authorities outside
                                             4
 1   of detention context with only minor injury did not rise to

 2   level of persecution); see also In re A-M-, 23 I. & N. Dec.

 3   737, 740 (BIA 2005) (looting of applicant’s store in 1998

 4   riots and harassment and extortion by Indonesian children

 5   when applicant was a child did not amount to persecution).

 6   Contrary to Aggrees’s argument, the agency was not required

 7   to   credit   the   sexual   assault    and   kidnapping   in    its

 8   consideration of cumulative harm because those incidents had

 9   no nexus to a protected ground.        See Tao Jiang v. Gonzales,

10   500 F.3d 137, 141-42 (2d Cir. 2007).

11        Both Aggrees and Niko assert eligibility for asylum or

12   withholding of removal based on a pattern or practice of

13   persecution of ethnic Chinese or Christians in Indonesia.

14   Absent past persecution, there is no presumption of a well-

15   founded fear of persecution (asylum) or a likelihood of

16   persecution   (withholding    of    removal).       8   C.F.R.    §§

17   1208.13(b), 1208.16(b)(2)(i).       Accordingly, to demonstrate

18   eligibility for asylum or withholding of removal, Aggrees

19   and Niko had to show persecution that would be “systemic,

20   pervasive, or organized,” and that the Indonesian government

21   would be unable or unwilling to control.        Mufied v. Mukasey,
                                     5
 1   508 F.3d 88, 92-93 (2d Cir. 2007) (internal quotation marks

 2   and    citation       omitted);        see     also         8      C.F.R.       §§

 3   1208.13(b)(2)(iii), 1208.16(b)(2)(i).

 4         In   addressing       this      issue,    petitioners            cite     to

 5   persuasive authority from other circuits about conditions in

 6   Indonesia, but do not contrast the evidence presented in

 7   those cases to the record in this one or cite any of the

 8   country    conditions      evidence    to    explain    how       it   showed    a

 9   pattern    or   practice    of     persecution.        We       find   that    the

10   agency’s    denial    of    the     pattern    or     practice         claim    is

11   supported by the record.

12         The IJ reviewed the current State Department reports

13   which showed discrimination of religious groups and isolated

14   incidents of violence against churches, theology schools, or

15   clergy, but also noted that there were 27 million Catholics

16   or Christians living in Indonesia.             A 2009 State Department

17   Issue Paper further undermined the claim; it reported that

18   the   Indonesian     government     increased       prosecution        of   those

19   responsible for religious violence, and stated that “there

20   has been a dramatic drop in Christian-Muslim violence.”                        The

21   Petitioners claim of a pattern of persecution of ethnic
                                           6
 1   Chinese was even less convincing.                The State Department

 2   reported only that ethnic Chinese suffered discrimination.

 3        Aggrees and Niko’s remaining evidence was inapposite,

 4   relating mainly to bombings of hotels, not targeting of

 5   Christians or ethnic Chinese.              Based on this evidence, the

 6   agency did not err in finding that Aggrees and Niko failed

 7   to establish a pattern or practice of persecution.                      See

 8   Santoso v. Holder, 580 F.3d 110, 112 (2d Cir. 2009) (denying

 9   pattern or practice claim based on similar evidence and

10   taking “judicial notice of the fact that Indonesia is a

11   nation     state    consisting    of   approximately     6000    inhabited

12   islands    and     that,   in   many   places,   Roman   Catholicism    is

13   predominant.”).       The agency was entitled to give more weight

14   to   the   State     Department     reports--which   showed      improving

15   conditions,        discrimination      (not   persecution)      of   ethnic

16   Chinese, and only isolated incidents of violence against

17   Christians--particularly where, as here, the other evidence

18   predated those reports.           See Jian Hui Shao v. Mukasey, 546

19   F.3d 138, 166 (2d Cir. 2008) (agency should consider most

20   recent State Department reports); Xiao Ji Chen v. U.S. Dep’t

21   of Justice, 471 F.3d 315, 341-42 (2d Cir. 2006) (holding
                                            7
 1   that    weight        to     place         on    reports       is     within      agency’s

 2   discretion); Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d

 3   Cir. 2005) (holding agency can rely on State Department

 4   reports     so    long       as       it    does      not    ignore        “contradictory

 5   evidence”).

 6          Finally,       the    BIA       did      not    abuse      its      discretion     in

 7   declining        to    remand          for       consideration          of       additional

 8   evidence.        The evidence presented on appeal was not new or

 9   previously unavailable.                    Singh v. U.S. Dep’t of Justice, 461

10   F.3d    290,     297       (2d    Cir.          2006);      see     also     8   C.F.R.     §

11   1003.2(c)(1).

12          For the foregoing reasons, the petition for review is

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

14   removal that the Court previously granted in this petition

15   are VACATED, and any pending motions for stays of removal in

16   this petition are DISMISSED as moot.                              Any pending request

17   for oral argument in this petition is DENIED in accordance

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

19   Second Circuit Local Rule 34.1(b).

20                                                FOR THE COURT:
21                                                Catherine O’Hagan Wolfe, Clerk




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