* Pursuant t o Federal Rule of Appellat e Procedure 43 (c)(2), Attor ney General Michael B.

Mukasey is automatically substituted for former Attorney General Alberto R. Gonzales as the respondent in this case. 06-0396-ag Mufied v. Muk asey UNIT ED S TAT ES COU RT OF A PP EALS F OR THE S ECOND C IRCU IT

_______________ August Term, 2007 (Argued: August 29, 2007 Decided: Nove mber 20, 2007) Docket No. 06-0396-ag

________________________________________________________

R EZA A BDUL M UFIED ,

Petitioner ,

—v.— M ICHAEL B. M UKASEY , United Sta tes Attor ney Genera l, * M ICHAEL C HERT OFF , Secretary of the U.S. Department of Homeland Security , J ULIE M YERS , Assistant Secreta ry of the U. S. Department of Homeland Security , J OHN P. T ORRES , Acting Director of Detention and Removal Office, Immigr

ation and Customs Enforcement, M ICHAEL F ICKE , Special Agent-in-Charge of the New York Field Office of I mmigration and Customs Enforcement, United States Department of Ju st ic e, U. S. De pa rt me nt of Ho me la nd Se cu ri ty, Responde nts

.

________________________________________________________ B e f o r e : J ACOBS , Chief Judge , K ATZMANN , and H ALL , Circuit Judges

.

_______________ Appeal from a judgment of the Boar d of Immigration Appea

ls affirming the decision of the Immigration Judge to deny the petitioner withholding of removal under the I mmigration and-2-

Nationality Act. Be cause the Board considered only whether the petitioner had established that he would b e single d out for p ersecu tion and di d not consi der the p etitioner ’s claim t hat ther e is a pattern or practice of persec ution of Christians in Indonesia, we GRANT the petition for review and REMAND for further proceedings.

_______________ Counsel for Defen

dant-Ap pellant: L AWRENCE S PIVAK , New York, NY. Counsel for Appellee: J OHN B AT TA GLIA , Unit ed States Department of Justice , Washington, DC (Patrick J. Fitzgerald, United States Attorney for the Northern District of Illinois, Kaarina Sa l ovaara and Craig A. Oswald, Assistant United States Attorneys, on the brie

f)

.

_______________ K ATZMANN , Circuit Judge : Petitioner Reza Abdul Mufied petitions for review of an order of the B oard of Immigration Appeals (“BIA”) a ffirming the decision of I

mmigration Judge (“IJ”) Joanna Miller Bukszpan to deny his application for withholding of removal under the I mmigration and Nationality Act, 8 U.S.C. § 1231(b)(3). See In re Mufied , No. A 96 423 965 (B.I.A. De c. 28, 2005) (“BIA

Decision”), aff’g

No. A 96 423 965 (Imm ig. Ct . N. Y. C it y Aug. 26, 200 4) ( “IJ Decision ”). Mufi ed based

his applic ation for

relief, in part, on his claim that Chris tians in Indonesia fa

ced a pa ttern or p ractice of perse cution, bu

t neither the I J nor the BI

A conside

red this claim. We remand to the BIA so tha t it may do so in the first instance. On re mand, we encourage the BI

A to elaborate upon the “sy stemic, pervasive, or organized” standard it has applied to analyzing suc

h claims.

I. Mufied is a

native a nd citizen o f Ind

onesia, having li

ved most r

ecently on Sulawe si1 Mufied also applied for relief under the United Na tions Convention Against Torture and Other Cruel, Inhuman or De grading Treatment or Punishment, Dec. 10, 1984, S. Tre aty Doc. No. 100-20, 1465 U.N.T.S. 85. The IJ denied this relief and Mufied f ailed to appeal this denial to the BIA. He c oncedes that we may not review this issue.

-3- island. He is Christian, but unlike most of the Indonesian Christian asy lum applicants who seek relief in our Court, he is not ethnically Chinese. His asylum application lists his ethnicity as “Manado is.” Mufie d was adm itted to the

United Sta

tes in 2001 as a non- immigra nt visitor w

ith authorization to remain in the country for a period not to exceed six months. He remained longer than authorized and was placed in removal procee dings in 2003. Once in proceedings, Mufied conceded removability

and applied for asy

lum and withholding of removal under the Immig ration a nd Nationality

Act. 1 The IJ granted the government’s motion to pretermit Mufied’s asy lum claim and denied his other applications for relief. With respect to his application for withholding of re moval, the IJ assumed that Mufied was a Christian but found that “he has not shown that the c ountry condition s are suc

h that it is more likely

than not that he wou

ld be persecuted

as a Chris tian in Indonesia.” I

J Decision at 6. The IJ addressed both Mufied’s testimony regarding his personal experien ce in I ndonesia and the ba

ckgro und mater

ials reg arding

“diffic ulties bet ween Mus lims and Christians” and “terrorist attacks across the country from time to time.” Id. Yet she appears to have considered each only for its value in predicting the likelihood that Mufied would be singled out for persecution if forced to re turn to his native country. Thus, she e xplained that “random terrori st violenc e does no t lead to a finding that it is mor

e likely than not th at this particu lar per son will be

persec uted on ac count of h

is relig ion if he w ere for

ced to re turn to Indonesia.” Id. And, foc using again on pet

itioner in dividually

, she did not find that

“the acts-4-

that did or did not happen to [Mufied] in the past rise to the level of any kind of a ssumption that he, rather than any

other Christian, would have a problem in Indone sia.” Id. at 7. Ac co rd in gl y, the IJ concluded, Mufied had not met his burden of proof and his application for withholding of removal was denied. Mufied appealed to the BI A. In his brief to the Boar d, he pressed two separate bases for withholding of removal. First, he claimed that the “threa ts and acts of violence suffered by the respondent on account of his Christian faith equate to persecution on ac count of religion” and that “such persecution can and will happen ag ain to the respondent.” Joint Appendix at 18. Second, he argued more broadly that he had “much to fear in the way of persecution on account of religion simply bec ause he is a Christian from Indonesia.” Id. at 19. This second ground was based not on any c laim of individualized treatment, but rather “[t]he existence of a pattern and practice of persecution ag ainst Christians in Indonesia.” Id. at 21. The BIA adopte d and affirmed the decision of the I J in a per curiam order. The Board first agreed that Mufied’s asy lum application was untimely. Then, turning to his application for withholding of removal, the BI A further agreed that “

the respondent did not meet his burden of proof and persuasion to establish past persecution or a clea r probability of persecution or torture were he returned to I

ndonesia.” BIA D ecision at 1. The Board cited the State Depar tment’s 2003 Country Report on Human Rights Prac tices for Indonesia as “ indicat[ing] that interreligious tolerance and coopera tion improved during the year following a drop in violence” and found that “[t]he respondent experienced few problems.” Id. Accordingly , the BIA conc luded that he had not “met the stringent standard of a cle ar probability of pe rsecution.” Id.-5- II. When the BIA adopts the dec ision of the IJ and supplements the IJ’s decision or emphasizes particular aspects of it, we review the I J’s decision as supplemented by the BI A as the final agency

determination. See Dong Gao v. BIA , 482 F.3d 122, 125-26 (2d Cir. 2007). Administra

tive findi ngs of f act in immig

ration c ases ar

e “conc lusive unl ess any

reasona ble adjudicator would be compelled to conclude to the contrary .” 8 U.S.C. § 1252(b)(4)(B). Accordingly , a reviewing court “defe r[s] to the factual findings of the BI A and the IJ if they

are supported by substantial evidenc e.” Xiao Ji Chen v. U.S. Dep’t of Justice , 471 F.3d 315, 333-34 (2d Cir. 2006) (internal quotation marks omitted). Leg al conclusions and the application of legal principles to undisputed facts are reviewed de novo

. See Yi Long Yang v. Go nzales, 478 F.3d 133, 141 ( 2d Cir. 200 7); Ibragimov v. Gonzales , 476 F.3d 125, 132 (2d Cir. 2007). To qualify for w

ithholding of removal, an applicant must demonstrate that her “life or freedom would be threatened in [the] country [of removal]” on the basis of one of five statutory grounds, “race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 12 31(b)(3 )(A); see also8 C.F.R. § 2 08.16(b) ; Ivanishvili v. U.S. Dep’t of Justice , 433 F.3d 332, 339 (2d Cir. 2006). Where the applicant establishes that she has “suffe red past persecution” on the basis of one such statutory ground, eligibility

for withholding of removal is presume d, subject to rebutt al. 8 C.F. R. § 208.16 (b)(1) ; Serafimovich v. Ash croft , 456 F.3d 81, 85 (2d Cir. 2006). I f the app licant did not suffe r past pe rsecution, or if the fear

of futur e threa t to life or f reedom i s unrela

ted to the past per secution

that she s uffere d, the app licant mus t establish “that it is more likely than not” that “she w ould be persecuted” in the future on acc ount of a protect ed gro und. 8 C.F .R. § 208.1 6(b)(2) ; Ivanishvili , 433 F.3d at 339. Such a showing does2 The IJ assumed, arguendo , that Mufied was a Christian. -6- not require “evidence that [the applicant] would be singled out individually for such persecution” if (i) The applicant establishes that in that country there is a pattern or practice of persecution of a group of persons similarly situated to the applicant on account of race, religion, nationality , membership in a particular social group, or political opinion; and (ii) The applica nt establi shes his or

her own i

nclusion i n and iden

tification with such group of persons such that it is more likely than not that his or her life or fr ee do m w ou ld be th re at en ed up on re tu rn to th at co un tr y. 8 C.F.R. § 208.16(b)(2). Neither the I J nor the BI

A appea rs to have consider ed Mufie d’s claim

that ther e is a pattern or practice of persec ution of Christians in Indonesia. 2 The IJ clearly based her decision on Mufied ’s failur

e to esta blish that he would be

singled out for pe

rsecution. While she

did consider the count ry condition s as desc

ribed in the backg

round mat

erials, she did so on

ly to inquire w hether t hey would “le ad to a fi

nding tha t it is more l ikely

than not that this particular person will be persecuted.” IJ Decision at 6 (emphasis added). We decline the government’s invitation to assume that the IJ made findings on the existence of a pattern or practice sub silenti

o merely because she consi dered e

vidence releva nt to that qu

estion for anothe

r purpose . Nor did the BIA supplement the I J’s decision in this regard. Indee d, it also appeared to base its denial of Mufied’s appeal on its finding that he had personally “experienced few problems.” Ordinarily, whe

n a disputed issue “requires determining the fac ts and deciding whether the facts as found fall within a statutory term,” we apply

what the Supreme Court has called the “ordinary remand rule.” Gonzales v. Thomas , 547 U.S. 183, 186-87 (2006) (internal quotation-7-

marks omitted). “A court of appeals is not gener ally empowere d to conduct a de novo inquiry into the matter being reviewed and to rea ch its own conclusions based on such an inquiry .” INS v. Orland o Ventura , 5 37 U. S. 12 , 1 6 ( 20 02 ) ( in te rn al qu ot at io n m ar ks om it te d) . A cc or di ng ly, “the proper course, except in rare c ircumstances, is to remand to the agency for additional investigation or explanation.” Id. (internal quotation marks omitted). Such circumstances may be pr esen t when “th e BI

A [has ] deci ded t

he sc ope o f the

statu tory term in a f act c onte xt sufficie ntly analog ous to [that] presente d [in the petition for review] t hat we c an rule . . . with assured confidence” on the issue. Ucelo-Gomez v. Gonzales , 464 F.3d 163, 170 (2d Cir. 2006). Arguably , the BIA’s opinion in In re A–M– , 23 I . & N. De c. 737 (B .I.A . 2005), c ould provide us with a basis to resolve this petition. In that case, the B IA could “not find, . . . on the record before [it], that the

threat o f harm to Chinese Ch ristians i n Ind onesia by the Gove rnment, or by forc es that the Government is unable or unwilling to control, is so sy stemic or pervasive as to amount to a pattern or practice of persec ution.” Id. at 741. In unpublished orders, we ha ve relied on this decision to deny petitions for re view brought by

other Chinese Christians from Indonesia. See, e.g. , Harry v. Gonzales , No. 06-4850-ag, 2007 WL 2541434 (2d Cir. Sept. 4, 2007). In thi s case, however , we dec line to ad dress Muf

ied’s pa ttern or p ractice claim in th e first instance for several reasons. First, the f actual issue considered by the BIA in In re A–M–

(i.e., whether Chinese Ch

ristians a re pers ecuted)

may be sligh tly d iffere nt from tha

t presen ted by this case (whether Christians of other ethnicities are pe rsecuted), and Mufied relies on more rec ent reports and evidence. See In re A–M– , 23 I. & N. Dec . at 741 (discussing the analy sis in a 2002 report by th e State De

partmen t of “insta nces of d iscrimina tion and ha

rassmen t again st ethnic3 In a ddition to the Third Cir

cuit, this s tandard

has been adopted by th e Seventh

Circuit, see Ahmed v. Gonzales , 467 F.3d 669, 675 (7th Cir. 2006) (“[A petitioner] must show a systematic, perva sive, or organized effort to kill, imprison, or severely injure members of the protected group, and this effort must be perpe trated or tolerated by

state actors.” (internal quotation marks omitted)), the Eighth Circuit, see Wijono v. Gonzales , 439 F.3d 868, 874 ( 8th Cir. 2006) (“To constitute a ‘pattern or practice,’ the persecution of the group must be ‘sy stemic, pervas ive, o r organi zed. ’” (quo ting Ngure v. A shcroft , 367 F.3d 975, 991 (8th Cir. 2004)), and the Tenth Circuit, see W

oldemes kel v. I NS , 257 F .3d 11 85, 11 91 (10 th Ci r. 200 1) (ado ptin g a definition of “pattern or practice of perse cution” as “‘something on the order of sy stematic or pervas ive pe rsecut ion’” (quot ing Makonne n v. INS , 44 F.3d 1378, 1383 (8th Cir. 1995)). -8- Chinese” (interna l quotation

marks omit

ted)). B ecause

the BI A did not a

ddress Mufied’s c laim,

we cann ot know wh ether, e

ven assum

ing Mana dois Christ

ians are treated similarly to Chinese Christian s, it would v

iew his ev

idence a s suffici ent to esta blish a re levant, material

chang e in conditions in Indonesia. This task is especially difficult in light of our uncertainty regarding the parameters of the relevant standard. Second the BIA’s a

nalysis in In re A–M–

does not provide us sufficient guidance for how to evalua te a patte rn or pra ctice c laim. The

BIA rejecte d the cla

im in that c ase bec ause it c ould not find that the alleged persecution was “so sy stemic or pervasive as to amount to a pattern or practice of persecution.” Id. at 741. It then cited an opinion by the Court of Appeals for the Third Circ

uit for the proposition that “‘ pattern or practice’ me ans pers ecution o f a gro up that is ‘systemic, perva sive, or organized.’” Id. (quot ing Lie v. Ash croft , 396 F.3d 530, 537 (3d Cir. 2005) (internal quotation marks omitted)). We afford “substantial defer ence” to the BI

A’s interpretations of its own regulations, Joaquin-Porras v. Gonzales , 435 F.3d 172, 178 (2d Cir. 2006), a nd this stan

dard, wh ich has be en adopte d by

severa l other c ourts of a

ppeals, 3 appears to be a reasonable one. Yet while the B IA’s bare a rticulation of the standard is “not unhelpful, . . . it is general and its application does not reliably control particular instances.” See Ucelo-Gomez ,-9-

464 F.3d at 171 (explaining that when the BI A’s interpretation of a certain statutory term, here “particular social group,” is g eneral, it can lead to a “wellspring of differing . . . interpretations by different courts of appeals”). Without further elabor ation, we are unsure how systemic, pervasive, or organized persec ution must be before the Board would recog nize it as a pattern or practice. Cf. SEC v. Chenery Corp. , 332 U.S. 194, 196-97 (1947) (noting that a court cannot “be expected to chisel that which must be precise from what the ag ency ha s left vague and indecisiv e”). I

ndeed, w e are un sure eve n as to wha

t indices t he Boar d had in min

d to guide us in assessing whether persecution is sy stemic, pervasive, or organized at all. Third, the nature o f the cla

im at issue

makes this

case “a n especi ally

attract ive cand idate for remand.” Yuanliang Liu v. U.S. Dep’t of Justice , 455 F.3d 106, 116 (2d Cir. 2006). The potential costs of a wrong decision on a pattern or pr actice claim are considerable be cause “once the court finds that a group was subject to a pattern or practice of persecution, every member of the group is eligible for [relief].” Ahmed v. Gonzales , 467 F.3d 669, 675 (7th Cir. 2006). The granting of a single c laim could bring on “an avalanche of a sylum-seekers.” Mitreva v. Gonzales , 417 F.3d 761, 765 (7th Cir. 2005). Yet the consequences of an e rroneous denial of a pattern or practice claim are obviously grave as well; such a decision would fore close the possibility

of relie f to any

one in a ta

rgete d group

who is una

ble to pro duce pro of that sh e would be singled out for mistreatment. As we have previously noted, [w]here so

much can

be lost—a

nd espec ially

in an are a of law i

n which, e

ven in the ordinary c ase, a lot is at stake—it is imperative that claims be adjudicated in a fair and reasoned way . Standardless and ad hoc decision making by f

ederal courts or by individua

l immigra tion judg es is espe cially

to be avoi ded with r

espect t o [such issue s]. Yuanliang Liu , 455 F.3d at 117 (internal citation omitted).-10-

For thes e reasons, we conclude that the better cou rse is for us to rema

nd this pet

ition to the BIA rathe

r than attempt to adjudicate Mufied’s claim ourselves. See Ucelo-Gomez , 464 F.3d at 172 (explaining that a general definition of a statutory term “is a start, but insufficient to meet the purpo ses of ap

pellate r eview” ); see also Yuanliang Liu , 455 F.3d at 116 (c oncluding , “as a matter of discretion, that it is prudent and useful for us to remand the issue” at ha nd, regardless of whether such a remand would be “re quired by eleme ntary principles of

administrative law” (emphasis omitted)). We are hopeful that the Board will take this opportunity to elaborate upon the “sy stemic, pe

rvasive , or org anized” s tandard it has ado

pted and p

rovide sufficien

t detail to guide both immigration judges and courts of appe als as they apply it to new factual contexts.

III. For the foregoing r

easons, we GRANT the petition for review, VACATE the BIA’s order, and REMAND to the BIA for proc eedings consistent with this opinion.