                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-3-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3570




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"Tjhi v. Atty Gen USA" (2008). 2008 Decisions. Paper 902.
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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 07-3570
                                      ___________

                                   MIAU KIAN TJHI
                                                           Petitioner

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES
                    ____________________________________

  On Petition for Review of an Order of Removal of the Board of Immigration Appeals
                               Agency No. A96-203-452
                            Immigration Judge: R.K. Malloy
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    JULY 2, 2008

             Before: FUENTES, ALDISERT AND GARTH, Circuit Judges

                                   (filed: July 3, 2008)

                                       _________

                                        OPINION
                                       _________

PER CURIAM

      Miau Kian Tjhi, a native and citizen of Indonesia, seeks review of a final order of

removal. For the reasons that follow, we will deny the petition for review.



      Tjhi entered the United States on June 13, 2001, at Los Angeles, California. The
government issued a Notice to Appear on April 17, 2003, and Tjhi filed his application

for asylum, withholding of removal, protection under the Convention Against Torture

(“CAT”), and voluntary departure on March 9, 2004. The Immigration Judge (“IJ”) held

a hearing on November 10, 2005. Tjhi testified that he is an ethnic Chinese and a

Buddhist. In 1996, rioters burned down his parents’ store. Tjhi presented photographs of

the resulting damage. After the riots, Tjhi moved to Taiwan on the advice of his parents.

In 1998, while he was living in Taiwan, anti-Chinese rioters destroyed his brother’s store.

Tjhi remained in Taiwan until 2000 and returned to Indonesia only because he lacked

legal status in Taiwan. Tjhi admitted that he suffered no serious injury or harm as a result

of the two riots. Nonetheless, he testified that he fears he will be persecuted if he returns

to Indonesia.

       The IJ determined that Tjhi had not carried his burden of proof for withholding of

removal or for relief under CAT, but granted his application for voluntary departure. The

BIA affirmed.1

       To qualify for withholding of removal, a petitioner must establish that it is more


  1
    With respect to Tjhi’s claim for asylum, the IJ determined that Tjhi had failed to meet
his burden of showing by clear and convincing evidence that he had applied for asylum
within one year of his arrival, and that Tjhi had not alleged circumstances that would
render him eligible for a waiver of the one-year filing deadline. 8 U.S.C. § 1158(a)(2)(B),
(D). Tjhi has not raised this issue on appeal. In any event, we lack jurisdiction to review
an IJ’s determination that an applicant failed to file his asylum application within one
year of arrival, or an IJ’s discretionary decision that there are no changed or extraordinary
circumstances that warrant consideration of the application. 8 U.S.C. § 1158(a)(3); Kaita
v. Att’y Gen., 522 F.3d 288, 296 (3d Cir. 2008); Sun Wen Chen v. Att’y Gen., 491 F.3d
100, 105 (3d Cir. 2007).

                                              2
likely than not that his life or freedom would be threatened due to a protected category if

returned to his country. Kaita v. Att’y Gen., 522 F.3d 288, 296 (3d Cir. 2008). Tjhi has

not established any likelihood, let alone a “clear probability,” that he will suffer any

injury based on his Chinese ethnicity or his Buddhist religion.2 Id. He has proffered no

evidence to indicate that future riots are more likely than not, nor has he established a

clear probability that he would be targeted or harmed should riots occur. Similarly, Tjhi

failed to establish that, more likely than not, he would be tortured if he returns to

Indonesia. To the extent Tjhi seeks a stay of removal or voluntary departure, his motion

is denied.3

       For the foregoing reasons, the petition for review is denied.




  2
   It bears mention that counsel submitted a brief arguing at length that Chinese
Christians are persecuted by Muslim Indonesians, an issue wholly irrelevant to this
petition for review, particularly since Tjhi is not a Christian, but a Buddhist. It behooves
counsel to strive to provide competent representation to his clients, many of whom make
great sacrifices to pay his fees.
  3
   Although Tjhi’s brief refers to a motion for a stay of removal, no such motion was
received by the Court.

                                              3
