Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-15-2007

Tjioe v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1470




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NOT PRECEDENTIAL


                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                  Case No: 06-1470

                                   JONG T. TJIOE

                                           Petitioner


                                           v.

                          ATTORNEY GENERAL OF THE
                               UNITED STATES,

                                          Respondent


                    On Petition for Review of Final Decision of the
                             Board of Immigration Appeals
                                BIA No.: A96-257-947
                      Immigration Judge: Donald Vincent Ferlise


                             Submitted February 12, 2006

                    Before: SMITH and FISHER, Circuit Judges,
                          and DIAMOND, District Judge *

                              (Filed: February 15, 2007 )

                                 _________________

                                     OPINION
                                 _________________


  *
   The Honorable Gustave Diamond, Senior District Judge for the Western District of
Pennsylvania, sitting by designation.
SMITH, Circuit Judge.

                                             I.

       Jong T. Tjioe petitions for review of a final order of the Board of Immigration

Appeals (BIA), affirming the denial by the Immigration Judge (IJ) of Tjioe’s application

for asylum and withholding of removal.1 We will dismiss in part and deny in part Tjioe’s

petition for review.

       Tjioe is a native and citizen of Indonesia. He alleged in his application for asylum

that he had been persecuted in Indonesia on the basis of both his Chinese ethnicity and his

Roman Catholic faith. Tjioe alleges that he suffered from persecution in four separate

incidents in Indonesia. The first, in 1990, was based on Tjioe’s denial of admission to a

state university. The second, during the riots of May 1998, involved Tjioe’s observation

of six Chinese people forced out of their car by a mob, which subsequently set the car on

fire. The third, in 1999, was based on pressure Tjioe felt to convert to Islam by his

employer. The fourth, in 2000, involved an incident where two possibly drunk people on

a motorcycle threw a bottle at a car that contained Tjioe and his family. When Tjioe

stopped the car, he was allegedly punched and several Indonesian Muslims allegedly

made anti-Chinese statements to Tjioe and his family. In October 2001, Tjioe entered the



   1
    We note that Tjioe has waived his Convention Against Torture (CAT) claim because
he does not sufficiently challenge the BIA’s denial of protection under the CAT. See Lie
v. Ashcroft, 

, 532 n.1 (3d Cir. 2005).

                                             2
United States. He did not apply for asylum until February 2003.

       At Tjioe’s initial hearing before Immigration Judge Donald Ferlise on May 15,

2003, Tjioe conceded removability but requested asylum, withholding of removal, and

relief under the Convention Against Torture. The IJ continued this hearing to November

23, 2004, so that Tjioe could submit further evidence showing changed or extraordinary

circumstances that might explain the untimely delay in Tjioe’s asylum application. At the

November 23, 2004 hearing, the IJ denied Tjioe’s application but granted him voluntary

departure. The IJ found that, although Tjioe was “basically a credible witness,” the four

incidents did not rise to the level of past persecution. The IJ further found that Tjioe did

not demonstrate a reasonable fear of future persecution, as the four incidents “appear to

be isolated events and the Court finds it highly unlikely that these circumstances would

present themselves again to replicate what has happened to [Tjioe] in the past.”

       The BIA exercised jurisdiction under 8 C.F.R. § 1003.1(b) and, on January 5,

2006, adopted and affirmed the IJ’s decision. In doing so, it agreed with the IJ that

Tjioe’s asylum claim was untimely and that he had failed to demonstrate changed

circumstances materially affecting his asylum eligibility or extraordinary circumstances

excusing his tardiness. As a result, the BIA considered only the merits of Tjioe’s claim

for withholding of removal and relief under the CAT, but agreed with the IJ that Tjioe did

not meet the burdens of proof on his claims of persecution and torture. This timely

petition for review followed.



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                                             II.

       We lack jurisdiction to review the BIA’s adoption of the IJ’s finding that Tjioe’s

asylum application was time-barred. See 8 U.S.C. § 1158(a)(2) (one year time bar).

Further, we lack jurisdiction under 8 U.S.C. § 1158(a)(3) to review the determination that

Tjioe failed to demonstrate circumstances excusing his untimely application. Tarrawally

v. Ashcroft, 

, 185 (3d Cir. 2003). We therefore dismiss this portion of the

petition for review.

       We exercise jurisdiction to review Tjioe’s claim for withholding of removal under

8 U.S.C. § 1231(b)(3)(A). See 8 U.S.C. § 1252(a). “[T]he Attorney General may not

remove an alien to a country if the Attorney General decides that the alien’s life or

freedom would be threatened in that country because of the alien’s race, religion,

nationality, membership in a particular social group or political opinion.” 8 U.S.C. §

1231(b)(3)(A). The alien must establish by a “clear probability” that his life or freedom

would be threatened in the proposed country of deportation. INS v. Stevic, 

,

413 (1984). A clear probability means “more likely than not.” 

We have

defined ‘persecution’ as “threats to life, confinement, torture, and economic restrictions

so severe that they constitute a threat to life or freedom.” Gabuniya v. Attorney General,

, 321 (3d Cir. 2006) (quotation omitted).

       In this case, the IJ determined that Tjioe had neither suffered past persecution nor

had a well-founded fear of future persecution. “We review an IJ’s factual findings,



                                             4
including his or her determination of whether an alien was subject to persecution or has a

well-founded fear of future persecution, under the substantial evidence standard.” Toure

v. Attorney General, 

, 316 (3d Cir. 2006) (citation omitted); Abdille v.

Ashcroft, 

, 483 (3d Cir. 2001). Under the substantial evidence standard, “the

administrative findings of fact are conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).

       The record before us does not compel the conclusion that Tjioe established his

eligibility for withholding of removal. The IJ properly concluded that the four incidents

recounted by Tjioe do not amount to past persecution and, relatedly, do not establish a

basis for fearing future persecution based on his ethnicity or religion. The first incident,

where Tjioe alleged that he was denied admission to a state university, does not rise to the

high threshold of persecution as defined in 

. As the IJ noted, Tjioe later

attained an accounting degree from a separate state university in Indonesia. The second

incident, where Tjioe and a friend observed several Chinese people being abused by an

unruly mob during the May 1998 riots, does not personally involve Tjioe in a manner

sufficient to constitute persecution. Tjioe stated that he was not physically harmed during

the riots at all. See, e.g., Rodriguez-Ramirez v. Ashcroft, 

, 124 (1st Cir.

2005) (“[W]e acknowledge that watching one’s father beaten may be a horrific

experience for a young child–but not all horrific experiences translate into persecution.”).

The third incident, where his employer attempted to convert him to Islam, provides no



                                              5
indication that the Indonesian government contributed to this pressure to convert or that

this act was “committed by the government or forces the government is either unable or

unwilling to control.” Lie v. Ashcroft, 

, 537 (3d Cir. 2005) (quotation

omitted). The fourth incident, by far the most serious of the lot, involved testimony by

Tjioe that two individuals on a motorcycle smashed a bottle into his car window and then

assaulted him. Further, several individuals purportedly made anti-Chinese statements to

Tjioe. In his testimony, Tjioe conceded that none of the assailants knew that Tjioe

practiced Roman Catholicism, and that his car was not targeted because he was Chinese.

Rather, the bottle was thrown from the motorcycle before either of the people on the

motorcycle knew the car’s occupants were Chinese. This isolated incident does not rise

to the level of persecution. See 

(stating that the petitioner’s “account of two

isolated criminal acts, perpetrated by unknown assailants, which resulted only in the theft

of some personal property and a minor injury, is not sufficiently severe to be considered

persecution”).

       Tjioe’s basis for his well-founded fear of future persecution claim derives from his

past persecution claims based on these four incidents. Because we agree with the BIA

and the IJ that Tjioe has not made out a claim for past persecution, we also conclude that

he has presented no evidence to carry his burden of proof for the likelihood of future

persecution. We also note that Tjioe’s siblings remain in Indonesia. See 

(stating that “when family members remain in petitioner’s native country without meeting


                                              6
harm, and there is no individualized showing that petitioner would be singled out for

persecution, the reasonableness of a petitioner’s well-founded fear of future persecution is

diminished”).

                                            III.

       For these reasons, we will dismiss in part and deny in part Tjioe’s petition for

review.




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