09-1069-ag

Mulyono v. Holder

BIA

Nelson, IJ

A097-586-583

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.

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 10 day of May, two thousand ten. th

PRESENT:

ROBERT D. SACK,

REENA RAGGI,

GERARD E. LYNCH,

 Circuit Judges.

_______________________________________

MARTHA MULYONO,

Petitioner,

v. 09-1069-ag

NAC

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL,

Respondent.

_______________________________________

FOR PETITIONER: Vincent S. Wong, New York, New York.

FOR RESPONDENT: Tony West, Assistant Attorney

General, Thomas B. Fatouros, Senior

Litigation Counsel, Arthur L. Rabin,

Attorney, Office of Immigration

Litigation, Civil Division, United

States Department of Justice,

Washington, D.C.
2

UPON DUE CONSIDERATION of this petition for review of a

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

hereby ORDERED, ADJUDGED, AND DECREED that the petition for

review is DENIED in part and DISMISSED in part.

Petitioner Martha Mulyono, a native and citizen of

Indonesia, seeks review of a February 23, 2009 order of the

BIA, affirming the February 14, 2007 decision of Immigration

Judge (“IJ”) Barbara A. Nelson, denying her application for

asylum and withholding of removal. In re Martha Mulyono,

No. A097 586 583 (B.I.A. Feb. 23, 2009), aff’g No. A097 586

583 (Immig. Ct. N.Y. City Feb. 14, 2007). We assume the

parties’ familiarity with the facts and the record of prior

proceedings, which we reference only as necessary to explain

our decision.

Under the circumstances of this case, we review both the

BIA’s and IJ’s opinions. See Yan Chen v. Gonzales, 417 F.3d

268, 271 (2d Cir. 2005). The applicable standards of review

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

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

1. Asylum and Withholding of Removal

We identify no error in the agency’s conclusion that,

even when considered cumulatively, the past harms Mulyono
3

alleged did not rise to the level of persecution. See

Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 340-41

(2d Cir. 2006) (noting that harm must be sufficiently severe

and rise above “mere harassment” to be deemed persecution);

Poradisova v. Gonzales, 420 F.3d 70, 79-80 (2d Cir. 2005);

see also Lie v. Ashcroft, 396 F.3d 530, 535-36 (3d Cir. 2005)

(holding that isolated criminal attacks do not constitute

persecution); Gormley v. Ashcroft, 364 F.3d 1172, 1177 (9th

Cir. 2004) (same); Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.

1993) (“[P]ersecution does not encompass all treatment that

our society regards as unfair, unjust, or even unlawful or

unconstitutional.”). 

Having failed to demonstrate that she suffered past

persecution, Mulyono was not entitled to a presumption of a

well-founded fear or likelihood of future persecution. See 8

C.F.R. §§ 1208.13(b)(1), 1208.16(b)(1). The BIA reasonably

concluded that Mulyono did not satisfy her burden of

establishing such a fear or likelihood. In particular, it

noted that the 2005 Country Report for Indonesia indicated

that the government officially promotes racial and ethnic

tolerance and that incidents of discrimination and harassment

have declined in comparison to previous years. It also noted
4

that because Mulyono’s mother and siblings apparently lived

and worked in Indonesia without incident, it was reasonable

to conclude that Mulyono could relocate within Indonesia to

avoid the harms that she feared. See Melgar de Torres v.

Reno, 191 F.3d 307, 313 (2d Cir. 1999) (finding claim of

well-founded fear weakened where asylum applicant’s mother

and daughters continued to live in applicant’s native country

without harm). In sum, substantial evidence supports the

agency’s determination that Mulyono lacked a well-founded

fear of persecution.

While Mulyono contends that the agency failed adequately

to consider the evidence she submitted, the agency need not

“expressly parse or refute on the record each individual

argument or piece of evidence offered by the petitioner” to

satisfy its obligation to consider all relevant evidence. 

Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006)

(internal quotation marks omitted). Instead, “we presume

that [the agency] has taken into account all of the evidence

before [it], unless the record compellingly suggests

otherwise.” Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d

315, 338 n.17 (2d Cir. 2006). Here, there is no indication

that the agency failed to consider any evidence in the
5

record. See Guan Shan Liao v. U.S. Dep’t of Justice, 293

F.3d 61, 68 (2d Cir. 2002). Accordingly, the BIA properly

concluded that Mulyono did not meet her burden of proof in

establishing her eligibility for asylum and withholding of

removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.

2006). 

2. CAT Relief

Because Mulyono failed to challenge the IJ’s denial of

CAT relief before the BIA, her CAT claim is unexhausted. We

therefore lack jurisdiction to consider any argument that she

is entitled to such relief. See 8 U.S.C. § 1252(d)(1).

3. Conclusion

For the foregoing reasons, the petition for review is

DENIED in part and DISMISSED in part. As we have completed

our review, any stay of removal that the Court previously

granted in this petition is VACATED, and any pending motion

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

Any pending request for oral argument in this petition is

DENIED in accordance with Federal Rule of Appellate 

Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk