Filed: Jun. 20, 2006
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 04-2329 TJONG WEN TJEN, Petitioner, versus ALBERTO R. GONZALES, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. (A79-469-347) Argued: May 25, 2006 Decided: June 20, 2006 Before WILLIAMS and MICHAEL, Circuit Judges, and HAMILTON, Senior Circuit Judge. Petition denied by unpublished per curiam opinion. ARGUED: Linda Hanten, HARRIGAN & HANTEN, P.C., Washington, D.C., for Petit
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 04-2329 TJONG WEN TJEN, Petitioner, versus ALBERTO R. GONZALES, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. (A79-469-347) Argued: May 25, 2006 Decided: June 20, 2006 Before WILLIAMS and MICHAEL, Circuit Judges, and HAMILTON, Senior Circuit Judge. Petition denied by unpublished per curiam opinion. ARGUED: Linda Hanten, HARRIGAN & HANTEN, P.C., Washington, D.C., for Petiti..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-2329
TJONG WEN TJEN,
Petitioner,
versus
ALBERTO R. GONZALES, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals. (A79-469-347)
Argued: May 25, 2006 Decided: June 20, 2006
Before WILLIAMS and MICHAEL, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Petition denied by unpublished per curiam opinion.
ARGUED: Linda Hanten, HARRIGAN & HANTEN, P.C., Washington, D.C.,
for Petitioner. James A. Frederick, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Respondent. ON BRIEF: Cecil C. Harrigan, HARRIGAN &
HANTEN, P.C., Washington, D.C., for Petitioner. Rod J. Rosenstein,
United States Attorney, Baltimore, Maryland, for Respondent.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Tjong Wen Tjen, a native and citizen of Indonesia, petitions
for review of an order of the Board of Immigration Appeals (BIA)
dismissing his appeal from the immigration judge’s denial of his
requests for asylum and withholding of removal. For the reasons
stated below, we deny Tjen’s petition for review.
I
Born on May 25, 1980, Tjen was nineteen years old when he
arrived in the United States on July 8, 1999. He did not file his
application for asylum and withholding of deportation until April
30, 2001.
In the declaration accompanying his application, Tjen, who
claims he is a Christian of Chinese ethnicity, described how
Christians of Chinese ethnicity are mistreated and discriminated
against in Indonesia. In support of this allegation, Tjen
submitted various reports prepared by the United States Department
of State.
In his declaration, Tjen also described an alleged incident of
violence in 1995. In his description of the event, Tjen stated
that he and several other Indonesians of Chinese ethnicity were
attacked by Muslim “Jihad[ists].” As a result of being kicked in
the face by one of the “Jihad[ists],” Tjen’s “lips were broken” and
he bled from his nose and mouth. Tjen also stated that, at the
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time of the attack, two policemen nearby refused to help, laughed,
and left on their motorcycles.
In his declaration, Tjen described an alleged incident of
violence in April 1999. He stated that, while he was attending a
university, a note was placed on the windshield of his car that
read “Beware Chinese.” Later the same day, he received a phone
call from an unknown caller who said “Beware Chinese!” The
following day, another note was left on his windshield that read
“Chinese roasted pig!” Later that night, Tjen received a telephone
call at home from the same unknown caller as the previous night and
the caller said “Are you ready to be roasted Chinese pig!”
A short time later, following his attendance at a lecture,
Tjen was stopped in his car by three Muslim men. One of these men
slashed his tire, while another broke a window. After being
removed from his car, Tjen was forced to the ground and kicked by
the men. As a result, Tjen’s “belly was really hurt and blood
started to come out [of his] mouth.” Tjen was able to repel his
attackers and escape. After this incident, Tjen decided to leave
Indonesia and head to the United States.
Following a hearing on May 23, 2003, the immigration judge
(IJ) issued a decision holding that Tjen’s asylum application was
untimely and that Tjen was not entitled to relief from the one-year
limitations period. Accordingly, Tjen’s request for asylum was
denied. The IJ also denied Tjen’s application for withholding of
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removal, holding that the credible evidence in the record did not
support the application.
Tjen sought review from the BIA. Before the BIA, Tjen claimed
that his asylum application was timely because he was entitled to
relief from the one-year limitations period for asylum
applications. Tjen also claimed that he produced credible evidence
in support of his application for withholding of removal. On
September 24, 2004, the BIA dismissed Tjen’s appeal. Tjen filed a
timely petition for review.
II
Tjen first contends that the BIA erred when it concluded that
his asylum application was untimely. We disagree.
Under the Immigration and Nationality Act (INA), any “alien
who is physically present in the United States or who arrives in
the United States . . . , irrespective of such alien’s status, may
apply for asylum.” 8 U.S.C. § § 1158(a)(1). The alien may not
apply for asylum “unless the alien demonstrates by clear and
convincing evidence that the application has been filed within one
year after the date of the alien’s arrival in the United States.”
Id. § 1158(a)(2)(B). “An application for asylum of an alien may be
considered, notwithstanding [the one-year limitations period], if
the alien demonstrates to the satisfaction of the Attorney General
either the existence of changed circumstances which materially
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affect the applicant’s eligibility for asylum or extraordinary
circumstances relating to the delay in filing an application within
the period specified.”
Id. § 1158(a)(2)(D). The term
“extraordinary circumstances” is defined in 8 C.F.R. § 1208.4(a)(5)
and includes a “[l]egal disability (e.g., the applicant was an
unaccompanied minor or suffered from a mental impairment) during
the 1-year period after arrival.” 8 C.F.R. § 1208.4(a)(5)(ii).
Tjen entered the United States on July 8, 1999 and, thus, had
until July 8, 2000 to file his asylum application, unless he
qualified for relief from the one-year limitations period. Tjen
did not file his application until April 30, 2001. Thus, the
timeliness of his application turns on his qualification for relief
from the one-year limitations period.
Tjen argued to the BIA that he was an “unaccompanied minor”
for purposes of 8 C.F.R. § 1208.4(a)(5)(ii) and, thus, was entitled
to relief from the one-year limitations period. The BIA rejected
Tjen’s argument and held that his asylum application was untimely.
We review legal questions determined by the BIA de novo,
Blanco de Belbruno v. Ashcroft,
362 F.3d 272, 278 (4th Cir. 2004),
according substantial deference to the BIA’s interpretation of the
regulations it administers, DeOsorio v. INS,
10 F.3d 1034, 1038
(4th Cir. 1993). As long as the BIA’s interpretation of the term
“unaccompanied minor” is reasonable, we will not disturb it.
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S.
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837, 843 (1984) (noting that, “if the statute is silent or
ambiguous with respect to the specific issue, the question for the
court is whether the agency’s answer is based on a permissible
construction of the statute”).*
The main hurdle in this case turns on the age portion of the
term “unaccompanied minor.” Tjen suggests that a “minor” is a
person under the age of twenty-one. The argument is premised on
the notion that the INA’s definition of “minor” is synonymous with
the INA’s definition of “child.” While neither the INA, nor its
regulations, define “minor” for general purposes, a “child” is
defined in the INA as a person under the age of twenty-one. See 8
U.S.C. § 1101(b)(1). The BIA concluded that a “minor” for purposes
of the INA was a person under the age of eighteen.
In our view, the BIA’s interpretation of the term “minor” is
reasonable. First, the BIA reasonably concluded that when one
*
In general, we are precluded from reviewing determinations
concerning the one-year asylum bar. See 8 U.S.C. § 1158(a)(3) (“No
court shall have jurisdiction to review any determination of the
Attorney General under paragraph (2) [the provision providing the
one-year limitations and possible exceptions].”). However, when
the issue before the court involves solely a question of law, we
have jurisdiction. See 8 U.S.C. § 1252(a)(2)(D) (“Nothing in
. . . any other provision of this chapter (other than this section)
which limits or eliminates judicial review, shall be construed as
precluding review of constitutional claims or questions of law
raised upon a petition for review filed with an appropriate court
of appeals in accordance with this section.”); cf. Ramadan v.
Gonzales,
427 F.3d 1218, 1222 (9th Cir. 2005) (explaining the
distinction between issues of statutory construction and
discretionary or factual questions). In this case, whether the
BIA’s interpretation of the term “an unaccompanied minor” is
reasonable presents a question of law.
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compares those provisions of the INA that use the term “child” (8
U.S.C. §§ 1101(a)(15)(E), (I), (N), (O), (P), (R), (T), (U), & (V))
with those provisions that use the term “minor child” or “minor
children” (8 U.S.C. §§ 1101(a)(15)(F), (H), (J), (K), (L), (M), &
(Q)), Congress could not have meant for “child” and “minor” to be
synonymous. Second, although the term “minor” is not defined for
general purposes of the INA, it is defined as a person under the
age of eighteen for purposes of determining whether an alien is
inadmissible for being unlawfully present in the United States, see
8 U.S.C. § 1182(a)(9)(B)(iii)(I). Obviously, the BIA was free to
reasonably rely on the definition of “minor” in a discrete portion
of the INA. Finally, the BIA reasonably relied on the fact that an
alien who has attained the age of eighteen is legally competent to
apply for relief and benefits on his own behalf. In sum, because
the BIA’s interpretation of the statutes is reasonable, we are not
at liberty to disturb that interpretation.
Turning to Tjen’s application for withholding of removal, we
begin by noting that there are no timeliness concerns regarding
this alternative ground for relief. See Xiao Ji Chen v. U.S. Dep’t
of Justice,
434 F.3d 144, 155 (2d Cir. 2006) (noting that
“eligibility for withholding of removal is not subject to 8 U.S.C.
§ 1158(a)(2)(B)’s one-year bar” and, thus, must be considered
regardless of the timeliness of the petitioner’s asylum
application). Accordingly, we must uphold the BIA’s determination
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regarding Tjen’s ineligibility for withholding of removal if the
decision is supported by substantial evidence in the record
considered as a whole. Rusu v. INS,
296 F.3d 316, 324 n.14 (4th
Cir. 2002).
To qualify for withholding of removal, Tjen must demonstrate
that, if he were deported to Indonesia, he faces “a clear
probability of persecution because of his race, religion,
nationality, membership in a particular social group, or political
opinion.”
Id. at 324 n.13. This is a more stringent standard than
that for asylum. Chen v. INS,
195 F.3d 198, 205 (4th Cir. 1999).
Unlike the grant of asylum (where an alien is entitled to remain in
the United States), withholding of removal merely bars the
deportation of an alien to a particular country. INS v.
Aguirre-Aguirre,
526 U.S. 415, 419 (1999). Further, while the
grant of asylum is discretionary, if an alien establishes
eligibility for withholding of removal, the grant is mandatory.
Id. at 420.
In this case, the BIA did not err when it concluded that Tjen
was not entitled to withholding of removal. First, the isolated
incidents that resulted in minimal harm to Tjen clearly do not rise
to the level of persecution. See Li v. Gonzales,
405 F.3d 171, 177
(4th Cir. 2005) (noting that minor beatings do not amount to
persecution). Second, Tjen’s father, mother, and sister continue
to live in Indonesia without meaningful incident. Cf. Lie v.
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Ashcroft,
396 F.3d 530, 537 (3d Cir. 2005) (“We agree that when
family members remain in petitioner’s native country without
meeting 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 persecution is
diminished.”). Third, we simply cannot take issue with the BIA’s
finding that, considering the current conditions in Indonesia, Tjen
would not be persecuted on account of his ethnicity or religion.
Thus, we cannot disturb the BIA’s conclusion that Tjen failed to
establish that, if he were deported to Indonesia, there was a clear
probability that he would be persecuted.
III
For the reasons stated herein, the petition for review is
denied.
PETITION DENIED
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