10-1127-ag

Siswoyo v. Holder

BIA

Nelson, IJ

A098 690 726

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 Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

New York, on the 28th 4 day of September, two thousand eleven.

5

6 PRESENT:

7 JOSEPH M. MCLAUGHLIN,

8 GUIDO CALABRESI,

9 RICHARD C. WESLEY,

10 Circuit Judges. 

11 _______________________________________

12

13 WINOTO SISWOYO,

14 Petitioner, 

15

16 v. 10-1127-ag

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES

19 ATTORNEY GENERAL,

20 Respondent.

21 _______________________________________

22

23 FOR PETITIONER: Ronald S. Salomon, New York, NY.

24

25 FOR RESPONDENT: Tony West, Assistant Attorney

26 General; Douglas E. Ginsburg,

27 Assistant Director; Paul Fiorino,

28 Senior Litigation Counsel, Office of
2

1 Immigration Litigation, United

2 States Department of Justice,

3 Washington, D.C.

4

5 UPON DUE CONSIDERATION of this petition for review of a

6 decision of the Board of Immigration Appeals (“BIA”), it is

7 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

8 review is DENIED.

9 Winoto Siswoyo, a native and citizen of Indonesia,

10 seeks review of a February 26, 2010, decision of the BIA

11 reaffirming, on remand, the September 20, 2005, decision of

12 Immigration Judge (“IJ”) Barbara A. Nelson denying his

13 application for asylum, withholding of removal, and relief

14 under the Convention Against Torture (“CAT”). In re Winoto

15 Siswoyo, No. A098 690 726 (B.I.A. Feb. 26, 2010), aff’g No.

16 A098 690 726 (Immig. Ct. N.Y. City Sept. 20, 2005). We

17 assume the parties’ familiarity with the underlying facts

18 and procedural history of this case.

19 Under the circumstances of this case, we review the

20 BIA’s decision alone. See Belortaja v. Gonzales, 484 F.3d

21 619, 622-23 (2d Cir. 2007). The applicable standards of

22 review are well-established. See 8 U.S.C. § 1252(b)(4)(B);

23 Aliyev v. Mukasey, 549 F.3d 111, 115-16 (2d Cir. 2008). 

24 As an initial matter, we do not consider the agency’s
3

1 denial of CAT relief because our prior decision dismissing

2 for lack of jurisdiction Siswoyo’s unexhausted challenge to

3 the denial of that form of relief remains the law of the

4 case. See Johnson v. Holder, 564 F.3d 95, 99 (2d Cir.

5 2009). Therefore, the only issue before us is Siswoyo’s

6 challenge to the BIA’s denial of asylum and withholding of

7 removal based on the finding that he failed to demonstrate a

8 pattern or practice of persecution against Chinese

9 Christians in Indonesia. 

10 In order to establish eligibility for asylum or

11 withholding of removal, an applicant need not “provide

12 evidence that there is a reasonable possibility he or she

13 would be singled out individually for persecution if . . .

14 [t]he applicant establishes that there is a pattern or

15 practice in his or her country of nationality . . . of

16 persecution of a group of persons similarly situated to the

17 applicant.” 8 C.F.R. § 1208.13(b)(2)(iii); see also

18 8 C.F.R. § 1208.16(b)(2)(i). The BIA has found time and

19 again that there is no such pattern or practice of

20 persecution against Chinese Christians in Indonesia, see,

21 e.g., Matter of A-M-, 23 I. & N. Dec. 737, 741 (BIA 2005),

22 and we have found no error in those decisions, see, e.g.,

23 Santoso v. Holder, 580 F.3d 110, 112 (2d Cir. 2009). 
4

1 Likewise, in this case, the BIA did not err in determining

2 that Siswoyo failed to establish a pattern or practice of

3 persecution against Chinese Christians in Indonesia. 

4 Indeed, the BIA reasonably found that although Chinese

5 Christians face incidents of harm, particularly by non-state

6 actors, and although government forces at times have

7 tolerated such illegal actions, the record did not establish

8 that there is systematic persecution of that group. See

9 Santoso, 580 F.3d at 112; see also Matter of A-M-, 23 I. &

10 N. Dec. at 741-42.

11 Because the BIA reasonably determined that Siswoyo

12 failed to establish a pattern or practice of persecution

13 against Chinese Christians in Indonesia, it did not err in

14 denying his applications for asylum and withholding of

15 removal. See 8 C.F.R. § 1208.13(b)(2)(iii); 8 C.F.R.

16 § 1208.16(b)(2)(i); see also Paul v. Gonzales, 444 F.3d 148,

17 156 (2d Cir. 2006).

18 For the foregoing reasons, the petition for review is

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

20 removal that the Court previously granted in this petition

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

22 this petition is DISMISSED as moot. Any pending request for

23 oral argument in this petition is DENIED in accordance with
5

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

2 Circuit Local Rule 34.1(b).

3 FOR THE COURT: 

4 Catherine O’Hagan Wolfe, Clerk

5

6