Fnu v. Gonzales

219 F. App'x 58
Court of Appeals for the Second Circuit·Decided March 2, 2007·No. No. 05-6375-ag.·Published

Opinion

SUMMARY ORDER

Petitioner Mardianawati Fnu, a native and citizen of Indonesia of ethnic Chinese origin, seeks review of an October 31, 2005 order of the BIA affirming the February 10, 2004 decision of Immigration Judge (“IJ”) Adam Opaciuch denying Mardianawati’s applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Mardianawati Fnu, No. A 96 266 889 (B.I.A. Oct. 31, 2005), aff'g No. A 96 266 889 (Immig. Ct. N.Y. City Feb. 10, 2004). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

As an initial matter, Title 8, Section 1158(a)(3) of the United States Code provides that no court shall have jurisdiction to review the agency’s finding that an asylum application was untimely under 8 U.S.C. § 1158(a)(2)(B). Notwithstanding that provision, however, this Court retains jurisdiction to review constitutional claims and “questions of law.” 8 U.S.C. § 1252(a)(2)(D); Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 826-27 (2d Cir.2006). Here, we lack jurisdiction to review Mardianawati’s asylum claim because she does not raise a question of law [60]*60or constitutional claim. We therefore dismiss her petition for review to this extent. However, section 1158(a)(3) applies only to asylum claims and does not divest this Court of jurisdiction under § 1252(a) to review final orders of removal which deny other relief, such as withholding of removal and CAT. See Joaquin-Porras v. Gonzales, 435 F.3d 172, 180-81 (2d Cir.2006). We therefore review Mardianawati’s remaining claims for relief on the merits.

When the BIA adopts the decision of the IJ and supplements the IJ’s decision, this Court reviews the decision of the IJ as supplemented by the BIA. See Yu Yin Yang v. Gonzales, 431 F.3d 84, 85 (2d Cir.2005); Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). This Court reviews 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, e.g., Zhou Yun Zhang v. INS, 386 F.3d 66, 73 & n. 7 (2d Cir.2004). However, we will vacate and remand for new findings if the agency’s reasoning or its fact-finding process was sufficiently flawed. Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir.2005); Tian-Yong Chen v. INS, 359 F.3d 121, 129 (2d Cir.2004). The Court reviews de novo questions of law and the application of law to undisputed fact. See, e.g., Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003).1

Substantial evidence supports the BIA’s and IJ’s determinations that Mardianawati failed to meet her burden of proof for withholding of removal. The IJ took into account Mardianawati’s claims that: a mob of angry Muslims attempted to break into and burn her family’s home in 1984, but was dispersed at the sound of police gunfire; a friend of her brother’s had been raped and killed, as was the friend’s family, on account of being ethnic Chinese; her own life was threatened by a native Indonesian; serious rioting occurred in Jakarta in May 1998; the windows of the Buddhist temple Mardianawati attended were broken when individuals threw stones at them; and bombings had occurred in Bali and Jakarta since her departure. Despite these disturbing events, the IJ appropriately observed that neither Mardianawati nor her family members had ever been physically injured in any way. Thus, the IJ reasonably found that these incidents did not amount to persecution on account of either Mardiana-wati’s ethnicity or religion. See Matter of Acosta, 19 I. & N. Dec. 211, 216 (BIA 1985) (defining persecution as “a threat to the life or freedom of, or the infliction of suffering or harm upon, those who differ in a way regarded as offensive”); Beskovic v. Gonzales, 467 F.3d 223, 226 n. 3 (2d Cir. 2006) (clarifying that a valid past persecution claim could be based on harm other than threats to life or freedom, including non-life-threatening violence and physical abuse); Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d Cir.2006) (emphasizing that harm must be sufficiently severe, rising above “mere harassment”); Tian-Yong Chen v. INS, 359 F.3d 121, 127 (2d Cir.2004).

[61]*61Furthermore, although the IJ did not mention in his analysis every incident described by Mardianawati, there is no indication that he did not consider the cumulative effect of these events. See Poradisova v. Gonzales, 420 F.3d 70, 79-80 (2d Cir.2005) (finding that, when assessing past persecution, the adjudicator must consider the cumulative effect of an applicant’s experiences); see also Xiao Ji Chen, 471 F.3d at 336, n. 17 (emphasizing that, where the agency has given reasoned consideration to the petition and made adequate findings, it is not required to address specifically each claim the petitioner made or each piece of evidence the petitioner presented). These circumstances would not compel a reasonable adjudicator to find that Mardia-nawati had established past persecution. 8 U.S.C. § 1252(b)(4)(B) (providing that findings are conclusive unless “any reasonable adjudicator would be compelled to conclude to the contrary”).

Likewise, substantial evidence supports the BIA’s and IJ’s determinations that Mardianawati failed to establish a well-founded fear of future persecution due to a pattern and practice of persecution against ethnic Chinese and non-Muslims. Mardianawati’s contention that the IJ failed to take into account the background materials in rendering his decision, is unavailing. To the contrary, the IJ specifically referenced those background materials in finding that conditions in Indonesia, while not “tremendously better,” had improved since the May 1998 riots described by Mardianawati.

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Fnu v. Gonzales, 219 F. App'x 58 (2d Cir. 2007).

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