         13-2382
         Lugito v. Holder
                                                                                       BIA
                                                                                  Weisel, IJ
                                                                               A088 527 847
                             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 27th day of October, two thousand fourteen.
 5
 6       PRESENT:
 7                RALPH K. WINTER,
 8                DENNY CHIN,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _____________________________________
12
13       CHRISTINA LUGITO, AKA CHRISTINA FNU,
14                Petitioner,
15
16                          v.                                  13-2382
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Andy Wong, New York, NY.
24
25       FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
26                                     General; Cindy S. Ferrier, Assistant
27                                     Director; Catherine B. Bye, Trial
28                                     Attorney, Office of Immigration
29                                     Litigation, United States Department
30                                     of Justice, Washington, D.C.
 1        UPON DUE CONSIDERATION of this petition for review of a

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

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

 4   is DENIED.

 5        Petitioner Christina Lugito, a native and citizen of

 6   Indonesia, seeks review of a May 21, 2013 order of the BIA,

 7   affirming the October 26, 2011 decision of an Immigration

 8   Judge (“IJ”), which denied asylum, withholding of removal,

 9   and relief under the Convention Against Torture (“CAT”).        In

10   re Christina Lugito, No. A088 527 847 (B.I.A. May 21, 2013),

11   aff’g No. A088 527 847 (Immig. Ct. New York City Oct. 26,

12   2011).   We assume the parties’ familiarity with the

13   underlying facts and procedural history in this case.

14        Under the circumstances of this case, we review the

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

16   Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).    The applicable

17   standards of review are well established.     See 8 U.S.C.

18   § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513

19   (2d Cir. 2009).

20   I.        Nexus

21        An applicant seeking asylum and withholding of removal

22   must establish that her past persecution or fear of future

23   persecution is on account of her race, religion,

                                   2
 1   nationality, political opinion, or membership in a

 2   particular social group.    See 8 U.S.C. § 1101(a)(42); see

 3   also 8 C.F.R. § 1208.16(b)(1).     “The protected ground need

 4   not be the sole motive” and an individual persecuted for

 5   multiple reasons is a refugee as long as one of those

 6   reasons is a protected ground.     Aliyev v. Mukasey, 549 F.3d

 7   111, 116 (2d Cir. 2008) (quotation omitted).

 8        The agency did not err in finding that Lugito failed

 9   to establish a nexus between her attempted rape and a

10   protected ground.   Lugito argues that she provided

11   sufficient factual context to demonstrate nexus even though

12   her attackers made no reference to her Chinese ethnicity.

13   Lugito testified that she is easily identifiable as Chinese,

14   and that other Indonesian men outside of her high school

15   would commonly say “You guys are Chinese. You guys are

16   beautiful. Don’t pretend and don’t be shy.”     She contends

17   that these statements show that Chinese women are perceived

18   as being available for sexual pleasure.     Even assuming

19   Lugito is correct, the comments of these other Indonesian

20   men outside the school do not establish the motivation of

21   the men who attacked her.   Morever, “support for a contrary

22   inference—even one more plausible or more natural—does not


                                    3
 1   suggest error.”   Siewe v. Gonzalez, 480 F.3d 160, 167-68 (2d

 2   Cir. 2007).

 3   II.       Past Persecution

 4         Given Lugito’s failure to establish a nexus between her

 5   attempted rape and a protected ground, the agency did not

 6   err in finding that she failed to establish past

 7   persecution.   See Ivanishvili v. U.S. Dep’t of Justice, 433

 8   F.3d 332, 342 (2d Cir. 2006).       The BIA has defined

 9   persecution as a “threat to the life or freedom of, or the

10   infliction of suffering or harm upon, those who differ in a

11   way regarded as offensive.”     Matter of Acosta, 19 I. & N.

12   Dec. 211, 222 (B.I.A. 1985), overruled, in part, on other

13   grounds, by INS v. Cardoza-Fonseca, 480 U.S. 421 (1987);

14   accord Ivanishvili, 433 F.3d at 342.       A past persecution

15   finding may be based on harm other than threats to life or

16   freedom, including non-life-threatening violence and

17   physical abuse, Beskovic v. Gonzales, 467 F.3d 223, 226 n.3

18   (2d Cir. 2006), but the harm must be sufficiently severe to

19   rise above “mere harassment,” Ivanishvili, 433 F.3d at 341.

20   The difference between harassment and persecution is

21   “necessarily one of degree that must be decided on a

22   case-by-case basis.”   Ivanishvili, 433 F.3d at 341.      Here,


                                     4
 1   the agency reasonably determined that the racial slurs

 2   Lugito endured did not did not rise to the level of

 3   persecution, Ivanishvili, 433 F.3d at 341; she was not

 4   physically harmed and was not threatened with physical

 5   violence.     Although Lugito argues that the IJ misconstrued

 6   the record by stating that she was taunted only by other

 7   children, the IJ noted in his decision that her Indonesian

 8   neighbors also called her racial slurs.     Lugito has

 9   therefore failed to demonstrate error in the agency’s past

10   persecution finding.

11   III.        Pattern or Practice of Persecution

12          The agency also did not err in finding that Lugito

13   failed to establish a pattern or practice of persecution

14   against ethnic Chinese or Buddhists in Indonesia.        “Where

15   the BIA explicitly discussed the pattern or practice claim

16   and the record includes substantial documentary evidence

17   regarding the conditions in petitioner’s homeland, we are

18   able to reach the conclusion that the agency's decision was

19   not erroneous.”     Santoso v. Holder, 580 F.3d 110, 112 (2d

20   Cir. 2009).     Here, the BIA explicitly addressed Lugito’s

21   pattern or practice claim and found it unsupported by the

22   record evidence.     Lugito contends that the BIA did not

23   adequately consider the evidence because the record reflects
                                     5
 1   incidents of violence against non-Muslim minorities in

 2   Indonesia; however, the task of resolving conflicts in the

 3   record evidence is largely within the agency’s discretion.

 4   See Jian Hui Shao v. Mukasey, 546 F.3d 138, 171 (2d Cir.

 5   2008).    See also Xiao Ji Chen v. U.S. Dep’t of Justice, 471

 6   F.3d 315, 337 n.17 (2d Cir. 2006) (presuming that the agency

 7   “has taken into account all of the evidence before [it],

 8   unless the record compellingly suggests otherwise”).     Lugito

 9   has therefore failed to demonstrate error in the agency’s

10   pattern or practice finding.

11   IV.        Withholding of Removal & CAT Relief

12         Lastly, we decline to review the denials of withholding

13   of removal and CAT relief because Lugito does not

14   meaningfully contest them in her brief.    See Yueqing Zhang

15   v. Gonzales, 426 F.3d 540, 542 n.1 (2d Cir. 2005) (“‘Issues

16   not sufficiently argued in the briefs are considered waived

17   and normally will not be addressed on appeal.’” (quoting

18   Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998)).

19         For the foregoing reasons, the petition for review is

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

21   removal that the Court previously granted in this petition

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

23   this petition is DISMISSED as moot.   Any pending request for
                                    6
1   oral argument in this petition is DENIED in accordance with

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

3   Circuit Local Rule 34.1(b).

4                                 FOR THE COURT:
5                                 Catherine O’Hagan Wolfe, Clerk
6
7




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