13-2151

Apriyandi v. Holder

BIA

Zagzoug, IJ

A087 976 856/857

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

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At a stated term of the United States Court of Appeals

for the Second Circuit, held at the Thurgood Marshall United

States Courthouse, 40 Foley Square, in the City of New York,

on the 23rd day of July, two thousand fourteen.

PRESENT:

JON O. NEWMAN,

RICHARD C. WESLEY,

GERARD E. LYNCH,

Circuit Judges. 

_____________________________________

FNU APRIYANDI, A.K.A. APRIYANDI

JONATHAN, A.K.A. APRIYANDI LNU,

IRMALA SARI, A.K.A. FNU IMALASARI,

A.K.A. IRMA PRISCILLA LASARI,

Petitioners, 

 v. 13-2151

NAC 

ERIC H. HOLDER, JR., UNITED STATES

ATTORNEY GENERAL,

Respondent.

_____________________________________

FOR PETITIONERS: Gary J. Yerman, New York, New York.

FOR RESPONDENT: Stuart F. Delery, Assistant Attorney

General; Daniel E. Goldman, Senior

Litigation Counsel; Jonathan
Robbins, Trial Attorney, Civil

Division, 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.

Petitioners FNU Apriyandi (“Apriyandi”) and Irmala Sari

(together, the “Apriyandis”), natives and citizens of

Indonesia, seek review of a May 9, 2013, decision of the BIA

affirming a February 17, 2011, decision of an Immigration

Judge (“IJ”) denying their applications for asylum,

withholding of removal and relief under the Convention

Against Torture (“CAT”). In re FNU Apriyandi, Irmala Sari,

Nos. A087 976 856/857 (B.I.A. May 9, 2013), aff’g Nos. A087

976 856/857 (Immig. Ct. N.Y. City Feb. 17, 2011). We assume

the parties’ familiarity with the underlying facts and

procedural history in this case. 

Given the circumstances of this case, 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) (per curiam) (quoting Wangchuck v. DHS, 448 F.3d 524,

528 (2d Cir. 2006)). The applicable standards of review are

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well established. See 8 U.S.C. § 1252(b)(4)(B); see also

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

Apriyandi challenges the agency’s finding that his

asylum application was untimely.

The Immigration and Nationality Act strips the federal

courts of jurisdiction to review the agency’s findings that

an asylum application was untimely and that the untimeliness

is not excused by changed or extraordinary circumstances. 8

U.S.C. §§ 1158(a)(2)(B); 1158(a)(3). Nonetheless, federal

courts retain jurisdiction to review constitutional claims

and “questions of law” arising from untimeliness

determinations. 8 U.S.C. § 1252(a)(2)(D). To determine

whether jurisdiction exists in a particular case, we “study

the arguments asserted” and ask, “regardless of the rhetoric

employed in the petition, whether it merely quarrels over

the correctness of the factual findings or justification for

the discretionary choices, in which case the court would

lack jurisdiction, or whether it instead raises a

‘constitutional claim’ or ‘question of law,’” in which case

those particular issues could be addressed. Xiao Ji Chen v.

U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir. 2006); Gui

Yin Liu v. INS, 508 F.3d 716, 720 (2d Cir. 2007) (per

curiam).

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The regulations provide that extraordinary

circumstances “may excuse the failure to file within the

1-year period as long as the alien filed the [asylum]

application within a reasonable period given those

circumstances.” 8 C.F.R. § 1208.4(a)(5). There is no

bright-line rule on what “reasonable” means; the agency has

disapproved of giving “an automatic one year extension from

the date” the extraordinary circumstance occurred (or

ended), but acknowledged that there might be “rare cases” in

which “a delay of 1 year or more may be justified.” In re

T-M-H & S-W-C-, 25 I & N Dec. 193, 193 (BIA 2010). 

Apriyandi concedes that his asylum application missed

the one-year deadline; he challenges only the agency’s

determination that he failed to establish “extraordinary

circumstances” excusing his untimely filing. When Apriyandi

arrived in the United States in 2005, he was 19 years old. 

He applied for asylum five years later, when he was 24 years

old. He contends that his status as an unaccompanied minor

was an extraordinary circumstance, and that thereafter, his

“youth and worries about his mother kept him from filing

sooner.” He thus “merely quarrels over the correctness of

the factual findings” that led the agency to rule that his

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circumstances were not extraordinary. Xiao Ji Chen, 471

F.3d at 329. We lack jurisdiction to review this argument.

We do have jurisdiction to review the agency’s denial

of withholding of removal and CAT relief. In the main, the

Apriyandis challenge the finding that the events they

suffered in Indonesia did not cumulatively amount to past

persecution.

“[P]ersecution is the infliction of suffering or harm

upon those who differ on the basis of a protected statutory

ground.” Ivanishvili v. U.S. Dept. of Justice, 433 F.3d

332, 341 (2d Cir. 2006). At the other end of the spectrum,

“mere annoyance and distress . . . characterize harassment.” 

Id. at 342. The difference “is necessarily one of degree,”

id. at 341, which much be measured “with regard to the

context in which the mistreatment occurs,” Beskovic v.

Gonzales, 467 F.3d 223, 226 (2d Cir. 2006) (emphasis in

original). 

Here, the agency reasonably placed the Apriyandis’

experiences on the harassment end of the spectrum. In her

oral decision, the IJ was mindful of the “cumulative

significance” of the events and considered them “in the

aggregate.” Poradisova v. Gonzales, 420 F.3d 70, 79 (2d

Cir. 2005). Some of what the Apriyandis described could

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“‘vex, trouble, or annoy continually or chronically,’” but

would not cause physical or mental “suffering or harm.” 

Ivanishvili, 433 F.3d at 341 (quoting Webster’s 3d New Int’l

Dictionary 1031 (1981)). Neither Apriyandi nor his wife

suffered lasting injury or sought medical treatment after

these isolated incidents. Moreover, the agency was within

its discretion to find that the Apriyandis’ assailants

appeared to be partly motivated by the monetary gains of

extortion and robbery, in addition to ethnic animus. See 8

U.S.C. § 1158(b)(1)(B)(I) (providing that an asylum

“applicant must establish that race, religion, nationality,

membership in a particular social group, or political

opinion was or will be at least one central reason for

persecuting the applicant”); In re J-B-N & S-M, 24 I. & N.

Dec. 208, 214 (BIA 2007) (“[T]he protected ground . . .

cannot be incidental, tangential, superficial, or

subordinate to another reason for harm.”). In short, the

record does not compel reversal of the agency’s finding that

the Apriyandis failed to carry their burden of demonstrating

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

Because of that failure, the Apriyandis needed to make

an independent showing that they would be subjected to harm

upon their return to Indonesia. 8 C.F.R. § 1208.16(b)(1). 

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They could do this by demonstrating either that they would

be singled out for persecution or that there exists a

pattern or practice of persecution of those similarly

situated. Id. The Apriyandis did not claim before the IJ

that they will be singled out for persecution, but did raise

that claim (albeit in passing) before the BIA. Neither the

IJ nor the BIA mentioned it in their decisions. In this

Court, the Apriyandis argue that they will be singled out

for harm based on their Christianity and the general country

conditions in Indonesia. That argument is indistinguishable

from their claim that there is a pattern or practice of

persecution of Christians or ethnic Chinese in Indonesia.

The agency was within its discretion to reject that

claim. In doing so, the IJ relied, in part, on the State

Department’s Bureau of Democracy, Human Rights and Labor

August 2009 report that “since the violence of the late

1990s through 2003, there has been a dramatic drop in

Christian-Muslim violence,” and that in “Sulawesi, police

cracked down on and arrested several suspects accursed of

terrorism and other violent crime related to interreligious

strife.” That report also states that the Indonesian

government officially recognizes six faiths (including

Protestantism and Catholicism) and has “generally respected”

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the constitutional protection for “all persons” to “worship

according to his or her own religion or belief.” Similarly,

the State Department reports that although “public servants

still discriminated against them,” ethnic Chinese “played a

major role in the economy, and increasingly participated in

politics.” We considered the Indonesian situation in

Santoso v. Holder, and affirmed the agency’s finding that no

pattern or practice of persecuting ethnic Chinese and

Catholics exists. 580 F.3d 110, 111-12 (2d Cir. 2009) (per

curiam). Taking “judicial notice of the fact that Indonesia

is a nation state consisting of approximately 6000 inhabited

islands and that, in many places, Roman Catholicism is

predominant,” we upheld the agency’s finding that “religious

violence in Indonesia” is “very localized,” and that ethnic

Chinese “play a major role in the economy of the country.” 

Id. at 112 (internal citations omitted). 

Having reasonably found that the Apriyandis failed to

establish eligibility for withholding of removal, the agency

did not err in denying relief under the CAT, as that claim

shared the same factual predicate. See Paul v. Gonzales,

444 F.3d 148, 156-57 (2d Cir. 2006); Xue Hong Yang v. U.S.

Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005). 

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For the foregoing reasons, the petition for review is

DENIED. As we have completed our review, the pending motion

for a stay of removal in this petition is DISMISSED as moot. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk

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