Pursuant to Federal Rule of Appellate Procedure 43(c)(2), 1

Attorney General Eric H. Holder, Jr. is automatically substituted for

former Attorney General Michael B. Mukasey as respondent in this case.

08-0681-ag

Winardy v. Holder

BIA

Torreh-Bayouth, IJ

A96 429 516

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 THIS COURT’S LOCAL RULE

32.1.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. 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 5 day of February, two thousand ten. th

PRESENT:

 ROSEMARY S. POOLER,

 ROBERT D. SACK,

 DEBRA ANN LIVINGSTON,

Circuit Judges. 

______________________________________

HENDRI WINARDY,

Petitioner, 

 v. 08-0681-ag

NAC

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL,1

Respondent.

______________________________________

FOR PETITIONER: Hendri Winardy, pro se, Corona, New

York.
2

FOR RESPONDENT: Gregory G. Katsas, Assistant

Attorney General; Carol Federighi,

Senior Litigation Counsel; Yamileth

G. Handuber, Trial Attorney, Office

of Immigration Litigation, United

States Department of Justice,

Washington, D.C.

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 DENIED.

Hendri Winardy, a native and citizen of Indonesia,

seeks review of a January 14, 2008 order of the BIA

affirming the May 17, 2006 decision of Immigration Judge

(“IJ”) Lilliana Torreh-Bayouth, which denied his application

for asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”). In re Hendri Winardy,

No. A96 429 516 (B.I.A. Jan. 14, 2008), aff’g No. A96 429

516 (Immig. Ct. Miami May 17, 2006). We assume the parties’

familiarity with the underlying facts and procedural history

in this case. 

As an initial matter, we note that Winardy does not

challenge the IJ’s finding that his application for asylum

was untimely pursuant to 8 U.S.C. § 1158(a)(2)(B). We also

note that several of the arguments raised by Winardy on

appeal were raised before the IJ, but not the BIA. Thus,
3

the BIA did not address those arguments, nor did it

expressly adopt the IJ’s conclusions on those points. In

such a circumstance, we may consider both the IJ’s and the

BIA’s opinions, because to do so does not affect our

ultimate conclusion. See Jigme Wangchuck v. DHS, 448 F.3d

524, 528 (2d Cir. 2006). We review the agency’s factual

findings under the substantial evidence standard. 8 U.S.C.

§ 1252(b)(4)(B). We review de novo questions of law and the

application of law to undisputed fact. Salimatou Bah v.

Mukasey, 529 F.3d 99, 110 (2d Cir. 2008). In this case, we

find that the agency did not err in denying Winardy’s

application for withholding of removal and CAT relief where

he failed to demonstrate past persecution or a likelihood of

harm if removed to Indonesia. 

Persecution is defined as “a threat to the life or

freedom of, or the infliction of suffering or harm upon,

those who differ in a way regarded as offensive,” Matter of

Acosta, 19 I. & N. Dec. 211, 216 (BIA 1985), including nonlife-threatening violence and physical abuse. See Beskovic

v. Gonzales, 467 F.3d 223, 226 n.3 (2d Cir. 2006) (citing

Tian-Yong Chen v. INS, 359 F.3d 121, 128 (2d. Cir. 2004)). 

In order to constitute persecution, the alleged harm must be

sufficiently severe, rising above “mere harassment.” 
4

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

Cir. 2006). 

In this case, the agency did not err in finding that

Winardy failed to demonstrate that he suffered past

persecution where he testified that the only physical harm

he suffered in Indonesia occurred during scuffles with

fellow school children. See id. Additionally, the agency

reasonably noted that Winardy failed to provide details

regarding the harm he suffered as a result of the purported

destruction of his business during riots in 1995. See Xiu

Fen Xia v. Mukasey, 510 F.3d 162, 167 (2d Cir. 2007). 

Moreover, the agency reasonably determined that Winardy

failed to establish that he personally suffered persecution

based on the harm inflicted on his family members. See Tao

Jiang v. Gonzales, 500 F.3d 137, 141 (2d Cir. 2007). We

decline to consider Winardy’s assertion that Islamic

militants in Indonesia hit him on the head with a gun in

1982 on account of his Chinese ethnicity and Buddhist faith

where he did not assert this alleged incident to the agency. 

See 8 U.S.C. § 1252(b)(4)(A) (providing that the Court must

“decide the petition [for review] only on the administrative

record on which the order of removal is based”). 
5

Ultimately, even considering in the aggregate the alleged

incidents of harm that Winardy purportedly suffered, his

experience was insufficiently severe to compel a reasonable

fact-finder to conclude, contrary to the agency, that he

suffered past persecution. See 8 U.S.C. § 1252(b)(4)(B);

see also Ivanishvili, 433 F.3d at 340-41.

As Winardy did not demonstrate that he suffered past

persecution, he was not entitled to the presumption of a

likelihood of future harm. See 8 C.F.R. § 1208.13(b)(1). 

Nor did he demonstrate a likelihood that he would suffer

harm if removed to Indonesia. Indeed, Winardy’s only

testimony as to his fear of future harm was that there was

no guarantee for his safety. Moreover, the IJ reasonably

relied on the 2005 U.S. Department of State Country Report

on Human Rights Practices in Indonesia to conclude that

Winardy failed to establish a likelihood of harm on account

of his Chinese ethnicity or religion, where the report does

not indicate that the discrimination against ethnic Chinese

individuals rises to the level of persecution and discusses

only isolated incidents of religious violence. See Tu Lin

v. Gonzales, 446 F.3d 395, 400 (2d Cir. 2006). 
6

Thus, as the agency’s finding that Winardy failed to

establish past persecution or a likelihood of future harm

was supported by substantial evidence, see 8 U.S.C. 

§ 1252(b)(4)(B), it reasonably denied his application for

withholding of removal and CAT relief. See Paul v.

Gonzales, 444 F.3d 148, 156 (2d Cir. 2006) (recognizing that

withholding of removal and CAT claims necessarily fail if

the applicant is unable to show the objective likelihood of

persecution and the factual predicate for the claims is the

same). 

For the foregoing reasons, the petition for review is

DENIED. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk