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


9-21-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2493




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 06-2493


                             AGUS SUSANTO WIDJAJA;
                               WONG MIE TJENG,
                                       Petitioners

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                   Respondent


                        Petition for Review of an Order of the
                         United States Department of Justice
                            Board of Immigration Appeals
                      (BIA Nos. A96-263-211 and A96-263-212)
                    Immigration Judge: Honorable Miriam K. Mills


                      Submitted Under Third Circuit LAR 34.1(a)
                                 September 12, 2007

           Before: RENDELL, FUENTES and CHAGARES, Circuit Judges.

                              (Filed: September 21, 2007)


                              OPINION OF THE COURT


RENDELL, Circuit Judge.

      Petitioner Agus Susanto Widjaja arrived in the United States in December 1998

with a non-immigrant visitor visa. Petitioner Wong Mie Tjeng, Widjaja’s wife, arrived in
the United States in July 2000, also with a non-immigrant visitor visa. After petitioners

remained beyond the six-month period allowed by their visas, the government instituted

removal proceedings against them. Widjaja then sought asylum and withholding of

removal under the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., and

protection under the United Nations Convention Against Torture (“CAT”). Tjeng did not

file her own application for asylum or withholding of removal, but sought asylum based

solely on her status as Widjaja’s wife. See 8 U.S.C. § 1158(b)(3).

       The Immigration Judge (“IJ”) denied relief, and the Board of Immigration Appeals

(“BIA”) adopted and affirmed the decision of the IJ, granting petitioners’ request for

voluntary departure under the INA. The BIA agreed with the IJ that Widjaja’s asylum

application was time-barred as it was not filed within one year after his arrival in the

United States, and he had not established changed circumstances affecting his eligibility

or extraordinary circumstances directly related to the failure to meet the one-year

deadline. See 8 U.S.C. § 1158(a)(2)(D). The BIA also agreed that Widjaja failed to

establish his eligibility for withholding of removal or protection under the CAT, and that

Tjeng’s derivative claim for asylum was properly denied based on the denial of Widjaja’s

claim. Petitioners now seek review of the denial of Widjaja’s claims for asylum and

withholding of removal and the denial of Tjeng’s derivative claim for asylum.1 For the



  1
    In his petition for review, Widjaja also mentions his CAT claim, but does not raise the
argument in his brief. Thus, he has waived that issue. See, e.g., Harvey v. Plains Twp.
Police Dep’t, 421 F.3d 185, 192 (3d Cir. 2005).

                                              2
reasons that follow, we will dismiss in part and deny in part the petition for review.

                                              I.

       We have jurisdiction over this petition pursuant to 8 U.S.C. § 1252(a)(1). Because

the BIA adopted the findings of the IJ and discussed some of the bases for the IJ’s

decision, we review the orders of the BIA and the IJ for substantial evidence. Chen v.

Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004).

       Petitioners first seek review of the denial of Widjaja’s asylum claim and Tjeng’s

derivative claim for asylum. The BIA affirmed the denial of these claims on the ground

that Widjaja’s asylum application was time-barred, as it was not filed within one year

after his arrival in the United States, and he had not established changed circumstances

affecting his eligibility or extraordinary circumstances directly related to the failure to

meet the one-year deadlines. Petitioners do not challenge the finding that Widjaja’s

asylum application was filed more than one year after his arrival in the United States and

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

failed to demonstrate circumstances excusing his untimely application. Tarrawally v.

Ashcroft, 338 F.3d 180, 185 (3d Cir. 2003). We therefore dismiss this portion of the

petition for review.

       Widjaja also seeks review of the denial of his application for withholding of

removal. To qualify for withholding of removal, Widjaja had to show a “clear

probability” that he would be persecuted on account of his race, religion, nationality,

membership in a particular social group, or political opinion if he returned to the

                                               3
proposed country of removal. INS v. Stevic, 467 U.S. 407, 413 (1984). Widjaja is a

Chinese Christian and a citizen of Indonesia who entered the United States because, he

claims, he was traumatized by conditions in Indonesia and fears that he will be killed if he

returns. Widjaja testified that his store was destroyed in 1995, and he was regularly

forced to give money to native Indonesians.2 Widjaja also argued that there is evidence

of a pattern and practice of persecution against the Chinese in Indonesia, thus he has a

well-founded fear of persecution. However, he testified that his children remain in

Indonesia without suffering any harm.

       Although the loss of his store and the alleged demands for money are unfortunate,

we agree that Widjaja has not presented evidence of past harassment that rises to the level

of persecution; instead that he claims that he suffered “emotional trauma” as a result of

the 1998 riots. He has presented no evidence that he will be personally targeted for

persecution upon return. Furthermore, our Court has not held that there is a pattern or

practice of persecuting Chinese Christians in Indonesia. While we have recognized that

there is a problem with religious violence in Indonesia, we have held that circumstances

do not compel the conclusion that there is a pattern and practice of persecution against

Chinese Christians in Indonesia. See Lie v. Ashcroft, 396 F.3d 530, 537-38 (3d Cir.

2005). Additionally, “when family members remain in petitioner’s native country


  2
    In his petition for review, Widjaja claims that he closed his store in 1998 after rioters
wrote anti-Chinese slogans on the walls. His petition also mentions that he had problems
as a child because he was Chinese, and his wife was once “robbed and hurt” on her way
home from their store by native Indonesians that she recognized from their neighborhood.

                                              4
without meeting harm, and there is no individualized showing that petitioner would be

singled out for persecution, the reasonableness of a well-founded fear of future

persecution is diminished.” Id. at 537. We conclude that the denial of Widjaja’s claim for

withholding of removal is supported by substantial evidence.

                                            II.

       Accordingly, we will dismiss in part and deny in part the petition for review.




                                             5
