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. At a stated term of the United States Court of Appeals**  1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 12 th** **day of January, two thousand twelve.** 4 5 **PRESENT:** 6 **GUIDO CALABRESI,** 7 **ROBERT A. KATZMANN,** 8 **RICHARD C. WESLEY,** 9 Circuit Judges**.** 10

**_____________________________________** 11 12 **RE INA GUNAWAN, IRSAN SUTANTO,** 13 Petitioners**,** 14 15 **v. 11-1799-ag** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent**.** 20

**_____________________________________** 21 22 **FOR PETITIONERS: H. Raymond Fasano, New York, New** 23 **York.** 24 25 **FOR RESPONDENT: Tony West, Assistant Attorney** 26 **General; Alison M. Igoe, Senior** 27 **Litigation Counsel; John M. McAdams,** 28 **Jr., Civil Division, Office of** 29 **Immigration Litigation, United** 30 **States Department of Justice,** 31 **Washington, D.C.** 322 UPON DUE CONSIDERATION of this petition for review of a 1 decision of the Board of Immigration Appeals (“BIA”), it is 2 hereby ORDERED, ADJUDGED, AND DECREED, that the Petitioners’ 3 petition for review is DENIED. 4 Re Ina Gunawan and Irsan Sutanto, natives and citizens 5 of Indonesia, seek review of an April 8, 2011, decision of 6 the BIA affirming the February 2, 2009, decision of 7 Immigration Judge (“IJ”) Sandy K. Hom, denying their 8 application for asylum, withholding of removal, and relief 9 under the Convention Against Torture (“CAT”). In re Re Ina 10 Gunawan and Irsan Sutanto , No. A089 254 179/180 (B.I.A. Apr. 11 8, 2011), aff’g No. A089 254 179/180 (Immig. Ct. N.Y. City 12 Feb. 2, 2009). We assume the parties’ familiarity with the 13 underlying facts and procedural history of this case. 14 Under the circumstances of this case, we have reviewed 15 both the IJ’s and the BIA’s opinions for the sake of 16 completeness. Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 17 2008). The applicable standards of review are well18 established. See 8 U.S.C. § 1252(b)(4)(B); Shu Wen Sun v. 19

BIA, 510 F.3d 377, 379 (2d Cir. 2008). 20 Petitioners have not argued in their brief that the 21 agency erred in finding their asylum application untimely, 22 or in denying their application for CAT relief. Further, 233 petitioners failed to raise their argument that they belong 1 to a disfavored group before the agency, and we decline to 2 consider the unexhausted claim. See Foster v. INS, 376 F.3d 3 75, 78 (2d Cir. 2004). 4 We find that substantial evidence supports the agency’s 5 finding that petitioners did not establish past persecution. 6 The incidents complained of – including robberies and 7 thefts, a groping incident at a shopping mall, Gunawan 8 fleeing from rioters who were near her mother’s store, and 9 petitioners having been near a church when it was bombed – 10 did not rise to the level of persecution. See Ivanishvili 11 v. U.S. Dep’t of Justice , 433 F.3d 332, 342 (2d Cir. 2006) 12 (holding that harm must be sufficiently severe, rising above 13 mere harassment, to constitute persecution). 14 We further find that the BIA properly determined that 15 petitioners did not establish a pattern or practice of 16 persecution of Chinese Christians, and thus did not 17 establish that it was more likely than not that they would 18 be persecuted if returned to Indonesia. See 8 C.F.R. 19 § 208.16(b)(1); Ramsameachire v. Ashcroft , 357 F.3d 169, 178 20 (2d Cir. 2004). The agency reviewed the evidence, including 21 United States State Department Country Reports, and 224 determined that instances of violence against Chinese 1 Christians in Indonesia have decreased, the Indonesian 2 government recognizes Christianity, and Chinese Christians 3 play a significant role in the economy. See Santoso v. 4 Holder, 580 F.3d 110, 112 (2d Cir. 2009). Petitioners’ 5 argument that Santosois distinguishable, and that this case 6 is analogous to Mufied v. Mukasey, 508 F.3d 88 (2d Cir. 7 2007), is without merit. The agency reviewed the evidence 8 and correctly applied the “pattern or practice” standard to 9 their claim. See Santoso , 580 F.3d at 112; cf. Mufied , 508 10 F.3d at 92-93 (remanding to the BIA where the agency failed 11 to address petitioner’s pattern or practice claim). 12 For the foregoing reasons, the petition for review is 13 DENIED. As we have completed our review, any stay of 14 removal that the Court previously granted in this petition 15 is VACATED, and any pending motion for a stay of removal in 16 this petition is DISMISSED as moot. Any pending request for 17 oral argument in this petition is DENIED in accordance with 18 Federal Rule of Appellate Procedure 34(a)(2), and Second 19 Circuit Local Rule 34.1(b). 20
FOR THE COURT: 21 Catherine O’Hagan Wolfe, Clerk 22 23