11-1799-ag

Gunawan v. Holder

BIA

Hom, IJ

A089 254 179

A089 254 180

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 12th 4 day of January, two thousand twelve.

5

6 PRESENT:

7 GUIDO CALABRESI,

8 ROBERT A. KATZMANN,

9 RICHARD C. WESLEY,

10 Circuit Judges. 

11 _____________________________________

12

13 RE INA GUNAWAN, IRSAN SUTANTO,

14 Petitioners, 

15

16 v. 11-1799-ag

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES

19 ATTORNEY GENERAL,

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONERS: H. Raymond Fasano, New York, New

24 York.

25

26 FOR RESPONDENT: Tony West, Assistant Attorney

27 General; Alison M. Igoe, Senior

28 Litigation Counsel; John M. McAdams,

29 Jr., Civil Division, Office of

30 Immigration Litigation, United

31 States Department of Justice,

32 Washington, D.C.
2

1 UPON DUE CONSIDERATION of this petition for review of a

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

3 hereby ORDERED, ADJUDGED, AND DECREED, that the Petitioners’

4 petition for review is DENIED.

5 Re Ina Gunawan and Irsan Sutanto, natives and citizens

6 of Indonesia, seek review of an April 8, 2011, decision of

7 the BIA affirming the February 2, 2009, decision of

8 Immigration Judge (“IJ”) Sandy K. Hom, denying their

9 application for asylum, withholding of removal, and relief

10 under the Convention Against Torture (“CAT”). In re Re Ina

11 Gunawan and Irsan Sutanto, No. A089 254 179/180 (B.I.A. Apr.

12 8, 2011), aff’g No. A089 254 179/180 (Immig. Ct. N.Y. City

13 Feb. 2, 2009). We assume the parties’ familiarity with the

14 underlying facts and procedural history of this case.

15 Under the circumstances of this case, we have reviewed

16 both the IJ’s and the BIA’s opinions for the sake of

17 completeness. Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.

18 2008). The applicable standards of review are well19 established. See 8 U.S.C. § 1252(b)(4)(B); Shu Wen Sun v.

20 BIA, 510 F.3d 377, 379 (2d Cir. 2008).

21 Petitioners have not argued in their brief that the

22 agency erred in finding their asylum application untimely,

23 or in denying their application for CAT relief. Further,
3

1 petitioners failed to raise their argument that they belong

2 to a disfavored group before the agency, and we decline to

3 consider the unexhausted claim. See Foster v. INS, 376 F.3d

4 75, 78 (2d Cir. 2004). 

5 We find that substantial evidence supports the agency’s

6 finding that petitioners did not establish past persecution. 

7 The incidents complained of – including robberies and

8 thefts, a groping incident at a shopping mall, Gunawan

9 fleeing from rioters who were near her mother’s store, and

10 petitioners having been near a church when it was bombed –

11 did not rise to the level of persecution. See Ivanishvili

12 v. U.S. Dep’t of Justice, 433 F.3d 332, 342 (2d Cir. 2006)

13 (holding that harm must be sufficiently severe, rising above

14 mere harassment, to constitute persecution).

15 We further find that the BIA properly determined that

16 petitioners did not establish a pattern or practice of

17 persecution of Chinese Christians, and thus did not

18 establish that it was more likely than not that they would

19 be persecuted if returned to Indonesia. See 8 C.F.R.

20 § 208.16(b)(1); Ramsameachire v. Ashcroft, 357 F.3d 169, 178

21 (2d Cir. 2004). The agency reviewed the evidence, including

22 United States State Department Country Reports, and
4

1 determined that instances of violence against Chinese

2 Christians in Indonesia have decreased, the Indonesian

3 government recognizes Christianity, and Chinese Christians

4 play a significant role in the economy. See Santoso v.

5 Holder, 580 F.3d 110, 112 (2d Cir. 2009). Petitioners’

6 argument that Santoso is distinguishable, and that this case

7 is analogous to Mufied v. Mukasey, 508 F.3d 88 (2d Cir.

8 2007), is without merit. The agency reviewed the evidence

9 and correctly applied the “pattern or practice” standard to

10 their claim. See Santoso, 580 F.3d at 112; cf. Mufied, 508

11 F.3d at 92-93 (remanding to the BIA where the agency failed

12 to address petitioner’s pattern or practice claim).

13 For the foregoing reasons, the petition for review is

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

15 removal that the Court previously granted in this petition

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

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

18 oral argument in this petition is DENIED in accordance with

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

20 Circuit Local Rule 34.1(b).

21 FOR THE COURT: 

22 Catherine O’Hagan Wolfe, Clerk

23