Tjhi v. Attorney General of the United States

252 F. App'x 457
CourtCourt of Appeals for the Third Circuit
DecidedOctober 29, 2007
DocketNo. 06-1914
StatusPublished

This text of 252 F. App'x 457 (Tjhi v. Attorney General of the United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tjhi v. Attorney General of the United States, 252 F. App'x 457 (3d Cir. 2007).

Opinion

OPINION OF THE COURT

JORDAN, Circuit Judge.

Sumiyati Tjhi petitions for review from the final order of the Board of Immigration Appeals (“BIA”) denying her claims for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). Tjhi claims that the BIA made several errors of fact and law. For the reasons that follow, we will deny the petition for review.

I.

Tjhi was born in Jakarta, Indonesia on March 11, 1977, and is ethnically Chinese. She was baptized into the Catholic Church on December 20, 1998. Tjhi alleges that she has suffered persecution throughout her life. First, she asserts that in elementary school native Indonesian classmates pushed her to the ground, threw stones at her, and yelled, “go back to China, you just live here for temporary, this not your country.” (Joint Appendix [“JA”] at 16.) She says that in high school she was robbed by students while on the bus to school. She further alleges that she and her friend were the only Chinese on the bus, and, not coincidentally, they were the only people robbed. Tjhi claims that, while she was a University student, native Indonesians grabbed her breasts while she was waiting at a bus stop. She also says that during the May, 1998 riots in Jakarta she felt unsafe and was too frightened to attend church. She testified that, about the time of the riots, while with her mother, she was accosted by a native Indonesian who yelled, “Hi Chinese[,] are you want being raped.” (JA at 17.) She also testified that shortly thereafter, again while walking with her mother, she was robbed by a man who was later apprehended by the police but went unpunished. Tjhi states that all of these events led to her departure from Indonesia on May 30, 2001. She arrived in the United States on May 31, 2001 with a temporary visa, and has remained in this country continually since her arrival. Her parents and sister both remain in Jakarta.

On May 28, 2002, Tjhi filed a petition for asylum on the basis of past persecution due to her race, religion, and nationality. * She appeared on April 23, 2003 for removal hearings before an Immigration Judge (“IJ”). At that hearing, she conceded removability, but petitioned for asylum, withholding of removal and protection under the CAT. After a hearing on Tjhi’s petition, the IJ issued an oral opinion dated December 17, 2004, denying relief. The IJ found Tjhi credible, but found that even if everything she testified to was true, she failed to establish either past persecution or a well-founded fear of future persecution. The IJ went on to state that even if Tjhi had established a subjectively genuine fear, that fear was not objectively reasonable or supported by the evidence.

Tjhi appealed the IJ’s decision to the BIA on November 23, 2005, claiming that there was enough evidence in the record to support her well-founded fear of future persecution. Specifically, Tjhi accused the IJ of making several “clearly erroneous factual conclusions” about country condi[459]*459tions in Indonesia and the reasonableness of Tjhi’s fear of future persecution. (JA at 78-79.) Nevertheless, the BIA affirmed the IJ’s decision on February 14, 2006, finding that Tjhi’s experiences did not “rise to the level of persecution.” The BIA also relied on Tjhi’s “testimony that her parents and her sister continue to live without harm in Indonesia, and that her Catholic sister remains able to attend church, undermines her claim that she has a well-founded fear of persecution if returned to Indonesia.” (JA at 87-88.) Tjhi filed a motion to reconsider and argued that the principle of mixed-motive persecution was applicable to her case. The BIA denied Tjhi’s motion, finding that “where the events recounted by an asylum applicant do not rise to the level of persecution, the issue of [mixed-motive persecution] is not relevant.” (JA at 113.)

II.

We have jurisdiction over a petition for review from an order of the BIA under section 242(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1252(a)(1).1 Lie v. Ashcroft, 396 F.3d 530, 534 n. 3 (3d Cir.2005).

Where the BIA issues “a decision on the merits and not simply a summary affirmance, we review the BIA’s, not the IJ’s, decision.” Lie, 396 F.3d at 534 n. 3, citing Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir.2002). We review the BIA’s factual findings to determine if they are supported by substantial evidence. Id. “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).

We review questions of law de novo. Wang v. Ashcroft, 368 F.3d 347, 349 (3d Cir.2004).

III.

Tjhi makes two claims in her appeal. First, she asserts that the BIA overlooked the motivation behind the acts of crime perpetrated against her, arguing that those acts were not isolated crimes but in fact constituted a persistent pattern of persecution. Second, she claims that the BIA ignored or misapplied the law by failing to discuss relevant law, by considering her family’s circumstances in assessing the objectivity of Tjhi’s fear of future persecution, and by refusing to remand the case to the IJ for further testimony regarding her experiences in Indonesia.

To qualify for asylum, a petitioner must show that she is “unable or unwilling to return to ... [her] country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. §§ 1158(b)(l)(B)(i), 1101(a)(42). To establish a well-founded fear of persecution, a petitioner “must first demonstrate a subjective fear of persecution through credible testimony that her fear is genuine.... Second the applicant must show, objectively, that ‘a reasonable person in the alien’s circumstances would fear persecution if re[460]*460turned to the country in question.’ ” Lie v. Ashcroft, 396 F.3d at 536, quoting Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003).

A.

In her first argument, Tjhi alleges that the BIA failed to consider the motivation of the criminal acts perpetrated against her, which she claims is sufficient to raise those crimes to the level of persecution. Specifically, Tjhi claims that there is “ample evidence that she was singled out for persecution” because of her ethnicity. (Petitioner’s Brief at 9.) Tjhi substantiates her claims by pointing to the incidents when she was shoved in school, robbed on a school bus, and groped and harassed on the street.

As upsetting as all these events no doubt were, Tjhi’s argument nevertheless misses the mark.

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