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


6-19-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-5175




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                                                                 NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                      No. 06-5175
                                      ___________

                             ALBERT CITRAJAYA TJIE,
                                           Petitioner

                                            v.

                ATTORNEY GENERAL OF THE UNITED STATES,
                                       Respondent

                      ____________________________________

                      On Petition for Review of an Order of the
                            Board of Immigration Appeals
                             (Agency No. A96-266-475)
                  Immigration Judge: Honorable Rosalind K. Malloy
                    ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   June 18, 2008
           Before: SLOVITER, STAPLETON and COWEN, Circuit Judges

                             (Opinion filed: June 19, 2008)
                                    ___________

                                       OPINION
                                      ___________

PER CURIAM

      Petitioner Albert Citrajaya Tjie petitions for review of an order of the Board of

Immigration Appeals (BIA) denying his application for asylum, withholding of removal,
and protection under the Convention Against Torture (CAT), and a subsequent order of

the BIA denying his motion to reopen. For the reasons that follow, we will deny the

petition for review.

       Tjie, a native and citizen of Indonesia, was admitted in the United States around

June 2, 2002, as a non-immigrant B-2 visitor, authorized to remain in the country until

December 1, 2002. On June 19, 2003, the Department of Homeland Security issued Tjie

a Notice to Appear, charging him with removability under INA § 237(a)(1)(B), 8 U.S.C. §

1227(a)(1)(B), for remaining in the United States for a time longer than permitted. Tjie

conceded that he was removable, but applied for asylum and withholding of removal,

claiming persecution in Indonesia as a practicing Christian of Chinese ethnicity.1

       In support of his asylum claim, Tjie alleged that he owned a transportation

company in Indonesia and twice had a truck stolen. In May 1999, Tjie contends that

armed men followed him home and stole his motorbike. Tjie claims that he learned the

robberies were planned by one of his former business associates because the associate

was a Muslim who disapproved of Tjie’s Christian faith. Tjie decided to sell his business

and come to the United States, but postponed this plan when his mother became ill. In

2000, Tjie was robbed again while he was withdrawing money from a bank, and the

thieves took his money and passport. In 2002, Tjie traveled to the United States. Tjie has




   1
     The Immigration Judge also construed Tjie’s asylum application as an application
for protection under CAT.

                                             2
one brother who resides in the United States, but his seven other siblings and his mother

reside in Indonesia (petitioner’s father is deceased). Tjie applied for asylum in April

2003.

        The Immigration Judge denied Tjie’s application for asylum and withholding of

removal, reasoning that the truck robberies, the theft of his motor bike, and the theft of his

money and passport, did not constitute past persecution on account of any of the five

enumerated grounds. The IJ further observed that petitioner was able to attend church in

Indonesia and that the government had taken steps to abolish discriminatory laws. Thus,

the IJ concluded that Tjie “has utterly failed to establish that . . . the [Indonesian

government] would be interested in persecuting him in the future on account of any of the

five enumerated grounds.” In addition, the IJ found that Tjie failed to prove that he

would more likely than not be tortured if returned to Indonesia. The IJ granted Tjie

voluntary departure. On July 11, 2006, the BIA adopted and affirmed the IJ’s decision.

The BIA found that the facts in Tjie’s case fell squarely under Lie v. Ashcroft, 396 F.3d

530, 537 (3d Cir. 2005) and dismissed the appeal. Tjie later filed a motion to reopen

discussing two new pieces of evidence: (1) petitioner claimed that in a recent telephone

call, his younger brother informed him that petitioner’s former business associate “came

to his home and asked to see respondent impolitely;” and (2) petitioner claimed that the

minister from his former church in Indonesia told him not to come home because their

church “was threatened to be closed.” The BIA denied the motion to reopen on November



                                               3
27, 2006.

       In his petition for review, Tjie states that he is seeking review of the BIA’s order

dated November 27, 2006 (denying petitioner’s motion to reopen) and the BIA’s order

dated July 11, 2006 (affirming the IJ’s original decision denying petitioner’s application

for asylum, withholding of removal, and relief under CAT). However, Tjie did not timely

file a petition for review challenging the BIA’s original final order of removal dated July

11, 2006. Accordingly, the only question that is properly before this Court is whether the

BIA abused its discretion in denying Tjie’s motion to reopen, as the Court lacks

jurisdiction to review the BIA’s July 2006 order. See Stone v. INS, 514 U.S. 386, 405

(1995). See also 8 U.S.C. § 1252(b)(1).

       Although we have jurisdiction to review the BIA’s order denying Tjie’s motion to

reopen, see, e.g., Ezeagwuna v. Ashcroft, 325 F.3d 396, 405 (3d Cir. 2003), the scope of

our review is quite limited. See INS v. Doherty, 502 U.S. 314, 323 (1992). Under the

regulations, the BIA “has discretion to deny a motion to reopen even if the party moving

has made out a prima facie case for relief.” 8 C.F.R. § 1003.2(a). As the Supreme Court

has stated, the regulations “plainly disfavor” such motions. INS v. Abudu, 485 U.S. 94,

110 (1988). Accordingly, the Court reviews the BIA’s denial of a motion to reopen for

abuse of discretion with “broad deference” to its decision. Ezeagwuna, 325 F.3d at 409

(quotation omitted). When the BIA denies a motion to reopen because the alien fails to

make a prima facie case for the underlying substantive relief sought, this Court reviews



                                              4
the BIA’s findings of fact for substantial evidence, and the ultimate decision to reject the

motion to reopen for an abuse of discretion. Sevoian v. Ashcroft, 290 F.3d 166, 170, 174

(3d Cir. 2002). Thus, in order to succeed on the petition for review, Tjie must show that

the BIA’s rejection of his motion to reopen was somehow arbitrary, irrational, or contrary

to law. See Tipu v. INS, 20 F.3d 580, 582 (3d Cir. 1994) (quotation omitted).

       In his appellate brief, Tjie makes no attempt to demonstrate that the BIA abused its

discretion in denying his motion to reopen. Tjie makes several passing references to the

denial of his motion to reopen, but offers no substantive arguments in support of his

position that he was “entitled to the reopening of his immigration case before the BIA.”

Tjie’s brief does not even reference the two new pieces of evidence that he previously

relied on in support of his motion to reopen. Instead, Tjie devotes his entire appellate

brief to re-arguing the merits of his application for asylum and withholding of removal.

Accordingly, we agree with the Respondent that Tjie has effectively waived any

challenge to the BIA order denying his motion to reopen. See United States v. Quillen,

335 F.3d 219, 224 (3d Cir. 2003); Int’l Union of N. Am. v. Foster Wheeler Corp., 26 F.3d

375, 398 (3d Cir. 1994) (“a passing reference to an issue . . . will not suffice to bring that

issue before this court.”) (quotation omitted).

       Regardless, even if Tjie had not waived any challenge to the BIA order denying his

motion to reopen, we would nonetheless deny his petition for review. The BIA’s

conclusion that Tjie failed to meet his burden of showing that a motion to reopen was



                                               5
warranted is not arbitrary, irrational, or contrary to law. See Tipu, 20 F.3d at 582. As the

BIA concluded, Tjie’s “unsupported claim that a business competitor is still angry with

respondent is not a ground for asylum, and [the fact] that the respondent’s church may

have been threatened with closing is insufficient to support a finding that the [petitioner]

has a well-founded fear of persecution.” 2 Thus, the BIA’s resolution of the merits of

Tjie’s motion to reopen, in holding that Tjie failed to make a prima facie showing, was

not an abuse of discretion. See Sevoian, 290 F.3d at 175, 177; Guo v. Ashcroft, 386 F.3d

556 (3d Cir. 2004) (prima facie case standard for a motion to reopen requires applicant to

produce objective evidence showing a reasonable likelihood that he can establish that he

is entitled to relief).

        For the foregoing reasons, we will deny the petition for review.3 Respondent’s

motion for summary disposition is granted to the extent that it seeks denial of the petition

for review.




   2
      On appeal, Tjie further asserts that he “might present” a “suicidal risk should he be
returned to Indonesia,” but petitioner provides no support for this statement, and did not
raise this claim before the BIA.
   3
     The petition for review also appears to renew a request for a stay motion. This
request is denied.
