11-3156

Lai v. Holder

BIA

Nelson, I.J.

A088 533 285

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

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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 14th day of August, two thousand twelve.

PRESENT:

GUIDO CALABRESI,

GERARD E. LYNCH,

DENNY CHIN,

Circuit Judges.

 

SELIX LAI,

Petitioner, 

11-3156

 v. NAC 

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL,

Respondent.

 

FOR PETITIONER: H. Raymond Fasano, Youman, Madeo, &

Fasano, LLP, New York, New York.

FOR RESPONDENT: Stuart Delery, Acting Assistant

Attorney General; Frank Fraser,

Senior Litigation Counsel; Anthony

J. Messuri, Trial Attorney, Office

of Immigration Litigation, United

States Department of Justice,

Washington, D.C.
2

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.

Petitioner Selix Lai, a native and citizen of

Indonesia, seeks review of a July 25, 2011, decision of the

BIA affirming the May 28, 2009, decision of Immigration

Judge (“IJ”) Barbara A. Nelson, denying Lai’s application

for asylum, withholding of removal and relief under the

Convention Against Torture (“CAT”). In re Selix Lai, No.

A088 533 285 (B.I.A. July 25, 2011), aff’g No. A088 533 285

(Immig. Ct. N.Y. City May 28, 2009). We assume the parties’

familiarity with the underlying facts and procedural history

of the case.

Because the Board’s reasoning “closely tracks” the

IJ’s, we have reviewed both the IJ’s and the BIA’s opinions

“for the sake of completeness.” Zaman v. Mukasey, 514 F.3d

233, 237 (2d Cir. 2008). The agency’s findings of fact are

reviewed under the substantial evidence standard, Yanqin

Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009), and “are

conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary.” 8 U.S.C.

§ 1252(b)(4)(B). 
3

As the agency found, although the mistreatment Lai

attributes to his Chinese ethnicity is deplorable, it does

not rise to the level of persecution. Lai correctly points

out that when determining whether an applicant has

demonstrated persecution, the agency must view events

cumulatively, rather than addressing the severity of each

event in isolation. See Manzur v. DHS, 494 F.3d 281, 290

(2d Cir. 2007). Here, however, both the BIA and the IJ

properly reviewed the incidents described in Lai’s

testimony. Much of Lai’s evidence was generalized rather

than particular to him. The agency reasonably found that

the two incidents on which Lai places the most emphasis –

the apparent indifference of a mall security guard to Lai’s

complaint that he had been robbed, and the hostility of a

crowd that gathered after Lai hit a man with his motorcycle

– amount to “mere harassment” rather than “persecution.” 

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

Cir. 2006). The record shows that Lai was never subjected

to serious physical or mental harm and, accordingly, he was

unable to show that his experiences in Indonesia amounted to

past persecution. See Mei Fun Wong v. Holder, 663 F.3d 64,

72 (2d Cir. 2011) (emphasizing that “persecution is an

extreme concept that does not include every sort of
4

treatment our society regards as offensive” (internal

quotation marks and citation omitted)).

Moreover, the agency did not err in determining that

Lai failed to establish a pattern or practice of persecution

against ethnic Chinese residents in Indonesia. See Santoso

v. Holder, 580 F.3d 110, 112 (2d Cir. 2009) (finding no

error in BIA’s determination that no such pattern or

practice of persecution exists). We need not decide whether

to adopt the “disfavored group” analysis employed by the

Ninth Circuit in Sael v. Ashcroft, 386 F.3d 922, 925 (9th

Cir. 2004) because Lai would not prevail even under that

rule. In Sael, the Ninth Circuit held that, because ethnic

Chinese were a historically “disfavored group” in Indonesia,

a lower level of individualized risk was required to show a

well founded fear of future persecution. Id. at 927. Here,

Lai did not present the agency with any individualized

evidence suggesting that he, in particular, would be subject

to persecution in Indonesia. The lesser showing required

under Sael would therefore not change the result in this

case.

Because Lai failed to establish his eligibility for

asylum, he necessarily was unable to meet the higher

standard to establish his eligibility for withholding of
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removal. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d

Cir. 2006). 

For the foregoing reasons, the petition for review is

DENIED. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk