Toar v. Holder

U.S. Court of Appeals for the Second Circuit
Toar v. Holder, 356 F. App'x 505 (2d Cir. 2009)

Toar v. Holder

Opinion

SUMMARY ORDER

Petitioner Ivane Toar, a native and citizen of Indonesia, seeks review of an August 18, 2008 order of the BIA affirming the October 18, 2007 decision of Immigration Judge (“IJ”) George T. Chew, denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Ivane Toar, No. A099 928 215 (B.I.A. Aug. 18, 2008), aff'g No. A099 928 215 (Immig. Ct. N.Y. City Oct. 18, 2007). We assume the parties’ familiarity with the underlying facts and procedural history of the case.

As an initial matter, because Toar fails to challenge the agency’s denial of her CAT claim before this Court, we deem any such argument waived. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir. 2005).

When the BIA issues an opinion that fully adopts the IJ’s decision, this Court reviews the IJ’s decision. See Mei Chai Ye v. U.S. Dep’t of Justice, 489 F.3d 517, 523 (2d Cir. 2007). We review the agency’s factual findings under the substantial evidence standard. See, e.g., 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. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).

We find that the record supports the agency’s determination that Toar failed to demonstrate a well-founded fear of future persecution. While Toar does not challenge the agency’s determination that she did not suffer past persecution, she relies on past events to support her claim that she has a well-founded fear of future persecution. Toar asserts that, taken together, the threats, insults, and injuries that she sustained while in Indonesia, and the background materials describing attacks on Christians in Indonesia, are sufficient to demonstrate her well-founded fear. Her arguments, however, are unavailing. Toar fails to demonstrate that the threats, insults, and injuries she endured in the past rose to the level of persecution. See Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d Cir. 2006). It follows then that even if she were to face similar conditions upon her return, the agency did not err in finding her fear of persecution not objectively well-founded.

Moreover, the agency’s analysis of Toar’s pattern or practice claim is not, *507 under the circumstances of this case, a basis for remand. We have previously noted that the BIA’s “systematic and pervasive” standard, announced in In re AM-, 23 I. & N. Dec. 737 (B.I.A. 2005), does “not provide us sufficient guidance” to evaluate pattern and practice claims. See Mufied v. Mukasey, 508 F.3d 88, 92 (2d Cir. 2007). Since Mufied, this Court has remanded several cases on the ground that it could not review the agency’s pattern- and-practice determination without further standards. See, e.g., Effendi v. Holder, 338 Fed.Appx. 102 (2d Cir. 2009); Firmanto v. Mukasey, 259 Fed.Appx. 366, 366-67 (2d Cir. 2008); Wirajaya v. Mukasey, 290 Fed.Appx. 428 (2d Cir. 2008). In our recent decision in Santoso v. Holder, however, we held that under the circumstances of that case, which include “where the BIA explicitly discussed the pattern or practice claim and the record includes substantial documentary evidence regarding the conditions in petitioner’s homeland,” remand was not necessary. 580 F.3d 110, 112 n. 1 (2d Cir. 2009). We similarly find that remand is not necessary in this case. We nonetheless renew our request that the BIA clarify its pattern-and-practice standard.

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 as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).

Reference

Full Case Name
Ivane TOAR, Petitioner, v. Eric H. HOLDER Jr., U.S. Attorney General, Respondent
Status
Unpublished