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Santoso v. Holder

September 14, 2009

MERLINDA SANTOSO, PETITIONER,
v.
ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL, RESPONDENT.*FN1



SYLLABUS BY THE COURT

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.

Per curiam.

Argued: September 2, 2009

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

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 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.

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 ...


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