Iskandar v. Holder
Docket: No. 08-2613-ag
Court: Court of Appeals for the Second Circuit; October 16, 2009; Federal Appellate Court
Juniarti Iskandar, an Indonesian citizen, seeks review of a BIA order affirming an immigration judge's (IJ) decision that pretermitted her asylum application and denied her request for withholding of removal. The BIA’s reasoning closely follows the IJ's, allowing consideration of both opinions for completeness. The Court reviews factual findings under a substantial evidence standard, treating them as conclusive unless compelling contrary evidence exists. Legal questions and their application to undisputed facts are reviewed de novo. The agency found that Iskandar did not meet her burden of proof for withholding of removal, supported by evidence that she had not endured past persecution due to her Chinese ethnicity or Buddhist faith. The definition of persecution does not cover all unfair or unlawful treatment. Iskandar claimed the agency failed to conduct a cumulative analysis, referencing a precedent case where remand was necessary due to inadequate analysis. However, in her case, the BIA explicitly stated it had assessed the cumulative effect of the incidents. The agency also determined that Iskandar did not demonstrate a clear probability of persecution if returned to Indonesia, referencing a 2003 Country Report indicating that ethnic Chinese are a significant non-indigenous group in Indonesia and are not typically targeted for persecution. Iskandar's argument based on extensive background material did not cite specific evidence establishing a clear probability of persecution, and neither the Court nor the agency is responsible for constructing an argument on her behalf. Evidence indicating that the petitioner’s family, also ethnic Chinese and Buddhists, remains unharmed in Indonesia weakened her argument for a likelihood of persecution. The BIA's finding that she did not demonstrate such likelihood aligns with judicial precedent, particularly Melgar de Torres v. Reno, which suggests that the safety of family members in the native country diminishes claims of well-founded fear. The petitioner’s request for a lesser burden of proof based on her membership in a 'disfavored group' was rejected, as reliance on Sael v. Ashcroft was deemed inappropriate. The distinction between the burden of proof for asylum claims and withholding of removal was clarified, and the court has not adopted the Sael standard for asylum claims. Ultimately, the petition for review was denied, any stay of removal was vacated, and any pending motion for a stay was dismissed.