09-2423-ag
Jusuf v. Holder
                                                                                BIA
                                                                        Van Wyke, IJ
                                                                        A096 263 111

                       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.

     At a stated term of the           United States Court of Appeals
for the Second Circuit, held           at the Daniel Patrick Moynihan
United States Courthouse, 500          Pearl Street, in the City of New
York, on the 1 st day of June,         two thousand ten.

PRESENT:
         JON O. NEWMAN,
         REENA RAGGI,
         PETER W. HALL,
           Circuit Judges.
_______________________________________

KURNIAWAN JUSUF,
         Petitioner,

                  v.                                               09-2423-ag
                                                                          NAC
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
         Respondent.
_______________________________________

FOR PETITIONER:                 Justin Conlon, North Haven, Conn.

FOR RESPONDENT:                 Tony West, Assistant Attorney General,
                                Linda S. Wernery, Assistant Director,
                                Gregory M. Kelch, Attorney, Office of
                                Immigration Litigation, Civil Divi-
                                sion, United States Department of
                                Justice, Washington, D.C.
      UPON DUE CONSIDERATION of this petition for review of a

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

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

review is DENIED.

      Petitioner      Kurniawan    Jusuf,    a   native    and   citizen    of

Indonesia, seeks review of a May 8, 2009, order of the BIA,

affirming the April 19, 2007, decision of Immigration Judge

(“IJ”) William Van Wyke, pretermitting his application for

asylum,    and   denying    his    applications     for    withholding      of

removal    and   relief    under     the    Convention    Against    Torture

(“CAT”).    In re Kurniawan Jusuf, No. A096 263 111 (B.I.A. May

8, 2009), aff’g No. A096 263 111 (Immig. Ct. N.Y. City Apr.

19,   2007).     We   assume   the    parties’    familiarity       with   the

underlying facts and procedural history of the case.

      Under the circumstances of this case, we review the IJ’s

decision as modified by the BIA decision.                 See Xue Hong Yang

v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).

The applicable standards of review are well-established.                   See

8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,

513 (2d Cir. 2009).

      As an initial matter, Jusuf concedes that this Court is

without jurisdiction to review the agency’s pretermission of



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his asylum claim, see 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D),

and    concedes      that    the    agency’s     denial       of    CAT    relief    is

supported by the record.            Accordingly, we only review Jusuf’s

withholding of removal claim.

I.     Past Persecution

       The record supports the agency’s determination that Jusuf

failed    to    demonstrate        that   he    suffered      past    persecution.

Jusuf argues that the agency failed to consider the cumulative

effect of the past harm he suffered.               See Manzur v. U.S. Dep’t

of Homeland Sec., 494 F.3d 281, 290 (2d Cir. 2007); see also

Poradisova v. Gonzales, 420 F.3d 70, 79-80 (2d Cir. 2005).

However,       the    IJ     properly       considered          his       experiences

cumulatively, stating in his decision that persecution can

constitute harm experienced “all at one time” or “over a long

period of time.”           The IJ concluded that “on balance the harm

that      [Jusuf]         described        constitutes          fairly        serious

discrimination over a period of time.                   But we believe that we

should    not describe it as persecution as such.”                           The BIA

affirmed the IJ’s decision and stated that “[t]he incidents

related    by     [Jusuf]     do    not     rise   to     the      level     of   past

persecution.”        The BIA further explained that Jusuf “was not

severely harmed and some of the incidents he relates appear to

be     related       to     criminal      behavior       or        harassment       and

                                          -3-
discrimination.”              Therefore, the record indicates that the

agency       properly         considered        Jusuf’s        experiences            in     the

aggregate.        See Poradisova, 420 F.3d at 79-80; Ivanishvili v.

U.S.    Dep’t     of    Justice,      433    F.3d     332,         340    (2d    Cir.      2006)

(finding that the harm suffered must be sufficiently severe,

rising above “mere harassment”).

       Furthermore, Jusuf erroneously relies on Jorge-Tzoc v.

Gonzales, 435 F.3d 146, 150 (2d Cir. 2007), in support of his

argument that the agency failed to adequately consider his

young age at the time of his mistreatment.                               Here, the agency

was not considering the issue present in Jorge-Tzoc – whether

an     applicant       for     asylum     who      had       not    directly          suffered

persecution         could     still     establish        eligibility            for    relief.

Rather, the agency was considering the issue of whether Jusuf,

who himself suffered harm, established that the harm amounted

to persecution, and it reasonably found that he did not.

       The    BIA      also    did    not     err    in       finding       that      Jusuf’s

mistreatment that stemmed from “criminal behavior” did not

constitute        persecution.           General      violence           “does     not      lend

support      to   an    asylum       claim    since      a    well-founded            fear    of

persecution must be on account of an enumerated ground set

forth in the Act, and general crime conditions are not a

stated ground.”          Melgar de Torres v. Reno, 191 F.3d 307, 314

                                             -4-
(2d Cir. 1999).         Moreover, contrary to Jusuf’s argument, the

BIA   did   not    hold      that       mistreatment       can    never     constitute

persecution if it results from mob violence.                          The BIA cited

Wijono v. Gonzales, 439 F.3d 868, 872 (8th Cir. 2006) (citing

Madjakpor v. Gonzales, 406 F.3d 1040, 1044 (8th Cir. 2005))

for   the     proposition           that        “low-level       intimidation        and

harassment    alone         do    not    rise   to   the     level   of    persecution

. . . nor does harm arising from general condition such as

anarchy, civil war, or mob violence . . . ” to support its

reasonable conclusion that the incidents related by Jusuf do

not rise to the level of past persecution.

II.         Well-Founded Fear

      Because Jusuf failed to demonstrate that he suffered past

persecution, he was not entitled to a presumption of a well-

founded     fear       of        future      persecution.            See    8    C.F.R.

§ 1208.13(b).          To the extent that Jusuf argues that he has

demonstrated       a   pattern          or   practice   of    persecution       against

ethnic-Chinese Christians in Indonesia, the agency considered

Jusuf’s     evidence        and    reasonably        found    that    he    failed    to

demonstrate a pattern or practice to qualify for withholding

of removal.       See Mufied v. Mukasey, 508 F.3d 88, 91 (2d Cir.

2007); see also Santoso v. Holder,                      580      F.3d 110 (2d Cir.

2009).       Accordingly,            substantial        evidence      supports       the

                                             -5-
agency’s finding that Jusuf failed to establish his burden for

withholding of removal, and the denial of his application was

proper.

    For the foregoing reasons, the petition for review is

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

that the Court previously granted in this petition is VACATED,

and any pending motion for a stay of removal in this petition

is DISMISSED as moot.    Any pending request for oral argument

in this petition is DENIED in accordance with Federal Rule of

Appellate Procedure 34(a)(2), and Second Circuit Local Rule

34.1(b).

                             FOR THE COURT:
                             Catherine O’Hagan Wolfe, Clerk




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