Santoso v. Holder

07-4713-ag

Santoso v. Holder

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term, 2009

(Argued: September 2, 2009 Decided: September 14, 2009)

Docket No. 07-4713-ag

MERLINDA SANTOSO ,

Petitioner,

v.

ERIC H. HOLDER, JR ., United States Attorney General,

Respondent.*

Before: CALABRESI, CABRANES, and HALL, Circuit Judges.

Petitioner, Merlinda Santoso, a native and citizen of Indonesia, seeks review of a September 28,

2007 order of the Board of Immigration Appeals (“BIA”) affirming the January 30, 2006 decision of an

immigration judge (“IJ”) denying Santoso’s application for asylum, withholding of removal, relief under

the Convention Against Torture, and voluntary departure. In her petition to this Court, Santoso argues

that the BIA and the IJ failed adequately to address her claim that there exists a pattern or practice of

persecution of ethnic Chinese and Catholics in Indonesia. We hold that the agency adequately

considered Santoso’s pattern or practice claim and, furthermore, that its finding that no such pattern or

practice exists is supported by substantial evidence.

Petition denied.

*

Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Eric H. Holder, Jr. is

automatically substituted for former Attorney General Michael B. Mukasey as respondent in this case.

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H. RAYMOND FASANO , Madeo & Fasano, New York, NY, for

Merlinda Santoso.

COLLETE J. WINSTON , Attorney, Office of Immigration

Litigation (Jefrey S. Bucholtz, Acting Assistant Attorney

General, David V. Bernal, Assistant Director, Office of

Immigration Litigation, on the brief) Civil Division, U.S.

Department of Justice, Washington, D.C., for Eric H.

Holder, Jr.

PER CURIAM :

Petitioner, Merlinda Santoso (“petitioner” or “Santoso”), a native and citizen of Indonesia,

seeks review of a September 28, 2007 order of the Board of Immigration Appeals (“BIA”) affirming

the January 30, 2006 decision of an immigration judge (“IJ”) denying Santoso’s application for asylum,

withholding of removal, relief under the Convention Against Torture (“CAT”), and voluntary

departure. In her petition to this Court, Santoso argues that the BIA and the IJ failed adequately to

address her claim that there exists a pattern or practice of persecution of ethnic Chinese and Catholics

in Indonesia.

BACKGROUND

Petitioner arrived in the United States on or about August 2, 1999, with authorization to remain

for a temporary period not to exceed six moths. On May 23, 2005, nearly six years after her arrival,

petitioner filed an application for asylum, withholding of removal, and relief under the CAT. Shortly

thereafter, the Department of Homeland Security charged her with removal pursuant to 8 U.S.C. §

1227(a)(1)(B) for remaining in the United States for a time longer than permitted and ordered her to

appear before an IJ on September 9, 2005.

At her hearing before the IJ, petitioner conceded her removability but requested asylum,

withholding of removal, CAT protection, and voluntary departure. On January 30, 2006, after hearing

petitioner’s testimony in support of her application, the IJ denied the relief sought. That decision was

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affirmed by the BIA on September 28, 2007, whereupon petitioner timely filed for review by this Court.

I.

Where the BIA adopts the decision of the IJ and supplements the IJ’s decision, we review the

decision of the IJ as supplemented by the BIA. Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We

review the agency’s factual findings under the substantial evidence standard, treating them as

“conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8

U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir. 2007).

“We review de novo questions of law and the application of law to undisputed fact.” Bah v. Mukasey, 529

F.3d 99, 110 (2d Cir. 2008).

II.

Santoso, relying on Mufied v. Mukasey, argues primarily that the IJ and the BIA did not

adequately consider whether there exists a pattern or practice of persecution of ethnic Chinese or

Catholics in Indonesia. See 508 F.3d 88, 91 (2d Cir. 2007) (remanding where “[n]either the IJ nor the

BIA appears to have considered Mufied’s claim that there is a pattern or practice of persecution of

Christians in Indonesia”). Unlike Mufied, however, in Santoso’s case, the BIA explicitly noted that “[t]he

discrimination and sporadic violence in various parts of Indonesia, as discussed by the Immigration

Judge, do not establish that there is a pattern or practice of persecution against individuals similarly

situated to the respondent.” J.A. at 3; see Mufied, 508 F.3d at 91 (noting that the BIA failed to

supplement the IJ’s discussion of persecution and “appeared to base its denial of Mufied’s appeal on its

finding that he had personally ‘experienced few problems’”). The fact that the BIA cited to the statute

governing generally the burden of proof for withholding of removal, 8 U.S.C. § 1231(b)(3), rather than

the more specific regulation discussing a pattern or practice of persecution, 8 C.F.R. § 1208.16(b)(2)(i),

is irrelevant in light of its explicit reference to Santoso’s pattern and practice claim.

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Although petitioner argues that neither the IJ nor the BIA articulated the precise standard they

applied to analyze Santoso’s pattern or practice claim, Mufied imposes no such requirement.1 In Mufied,

we remanded a case to the agency, in accordance with the “ordinary remand rule,” after finding that it

had ignored petitioner’s pattern or practice claim. 508 F.3d at 92-93. Here, unlike in Mufied, the BIA

did address petitioner’s pattern or practice claim, finding that petitioner failed to establish a pattern or

practice of persecution against ethnic Chinese or Catholics in Indonesia. J.A. at 3. Thus, the error

requiring remand in Mufied is not present in this case.

We also find no error in the agency’s substantive determination that petitioner did not establish

a pattern or practice of persecution. The IJ considered the background materials provided by petitioner

and noted that religious violence in Indonesia “was occurring on a very localized basis and was not

countrywide” and that “Roman Catholics . . . are free to practice their faith.” J.A. at 46. It also noted

that ethnic Chinese “play a major role in the economy of the country and are not hesitant about airing

their views publicly.” Id. at 45. Those findings were supported by the background materials and

provide a sufficient basis for finding no pattern or practice of persecution. J.A. at 147 (U.S. Dep’t of

State, Indonesia, Country Reports on Human Rights Practices 2004, at 25 (Feb. 28, 2005)); J.A. at 181

(U.S. Dep’t of State, Indonesia, International Religious Freedom Report 2002 (“Religious Freedom

Report”), at 1 (2002)). Furthermore, we may take 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. See The Statesman’s Year Book 2009 654 (Barry Turner ed., 2008);U.S. Dep’t of State,

1

In Mufied, we noted that the BIA’s “systematic and pervasive” standard, announced in In re A-M-, 23 I & N

Dec. 737 (B.I.A. 2005), did “not provide us sufficient guidance” to evaluate the petitioner’s pattern or practice claim in

that case. Mufied, 508 F.3d at 92. Although the BIA continues to apply that standard, in a case like this, where the BIA

explicitly discussed the pattern or practice claim and the record includes substantial documentary evidence regarding the

conditions in petitioner’s homeland, we are able to reach the conclusion that the agency’s decision was not erroneous.

Nevertheless, we hope that in time it will be possible for the Agency to refine or describe more fully its standards.

4

Background Note: Indonesia (March 2009), http://www.state.gov/r/pa/ei/bgn/2748.htm (last visited

Aug. 31, 2009) (noting that Indonesia consists of over 17,500 islands, 6000 of which are inhabited and

1000 of which are permanently settled); J.A. at 182 (Religious Freedom Report at 2) (explaining that

Roman Catholicism is predominant in several provinces).

Finally, Santoso does not challenge the agency’s pretermination of her asylum application, its

denial of her CAT claim, or its finding that she did not establish past persecution. Accordingly, we

deem those arguments waived. Zhang v. Gonzales, 426 F.3d 540, 545 n.7 (2d Cir. 2005).

CONCLUSION

In sum, we find that the agency adequately considered petitioner’s pattern or practice claim and

that it did not err in finding that she failed to demonstrate a pattern or practice of persecution of ethnic

Chinese or Catholics in Indonesia. For the foregoing reasons the petition for review is DENIED. 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.

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