Opinion
No. 05-3624-ag.
February 27, 2007.
Petition for review from the Board of Immigration Appeals.
UPON DUE CONSIDERATION of this petition for review of a decision of the Board of Immigration Appeals ("BIA"), it is hereby ORDERED, ADJUDGED, AND DECREED, that the petition for review is DENIED.
FOR PETITIONER: OLEH R. TUSTANIWSKY, Law Offices of Andrew P. Johnson, New York, N.Y.
FOR RESPONDENT: MICHAEL SADY, Assistant U.S. Attorney for the District of Massachusetts, for MICHAEL J. SULLIVAN, U.S. Attorney for the District of Massachusetts.
Petitioner Augustin Effendy, a native and citizen of Indonesia, petitions for review of the BIA's decision affirming Immigration Judge ("IJ") Sarah M. Burr's denial of his application for withholding of removal and relief under the Convention Against Torture (CAT). We assume the parties' familiarity with the facts of this case, its procedural posture, and the decision below.
When 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. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).
Effendy claims that he fears persecution on account of his Chinese ethnicity and Buddhist faith if he is returned to Indonesia. The IJ found credible Effendy's description of two robberies that occurred before he left Indonesia, only the latter of which he reported to the police. Nevertheless, the IJ and the BIA denied Effendy's asylum application as time-barred, for failure to apply within one year of arrival without a valid excuse. See 8 C.F.R. § 208.4. Effendy did not appeal this ruling to our court.
The IJ denied withholding of removal based on its finding that Effendy did not sustain his burden of showing that the two robberies amounted to persecution on the basis of ethnicity or religion. This finding is, in the circumstances of this case, supported by substantial evidence. See Tian-Yong Chen v. INS, 359 F.3d 121, 127 (2d Cir. 2004). Similarly, while petitioner demonstrated a subjective fear of future persecution, substantial evidence supported the IJ's finding that Effendy did not demonstrate an objective likelihood of future persecution if he is returned to Indonesia. In this respect, the IJ properly considered petitioner's account of the robberies; the fact that his family members — who also are Chinese and Buddhist, remain in Indonesia, and continue to own two grocery stores — have seemingly been undisturbed since the second robbery; and, to some extent, the country report.
Finally, petitioner appeals the IJ's denial of his CAT relief claim. Since Effendy failed to brief and argue this issue before the BIA, we may not consider it. See United States v. Gonzalez-Roque, 301 F.3d 39, 47 (2d Cir. 2002).
For the foregoing reasons, the petition for review is DENIED, 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 DENIED as moot.