IMG-122                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 09-1794
                                     ___________

                                  KOK WEI CHEAH,
                                           Petitioner

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                                  Respondent

                      ____________________________________

                       On Petition for Review of an Order of the
                            Board of Immigration Appeals
                             (Agency No. A97-447-363)
                    Immigration Judge: Honorable Eugene Pugliese
                      ____________________________________

                 Submitted Pursuant to Third Circuit LAR 34.1(a)
                                March 17, 2010
      Before: MCKEE, Chief Judge, HARDIMAN AND COWEN, Circuit Judges

                              (Opinion filed: June 9, 2010)
                                     ___________

                                      OPINION
                                     ___________

PER CURIAM

      Petitioner Kok Wei Cheah is a native and citizen of Malaysia who petitions for

review of the Board of Immigration Appeals’s (“BIA”) final order of removal. For the

following reasons, we will deny Cheah’s petition for review.
                                             I.

       Cheah entered the United States on a six-month visitor’s visa in August 2003. In

April 2005, the Department of Homeland Security issued a Notice to Appear that charged

Cheah with removability because he did not leave the United States at the conclusion of

his authorized stay. See 8 U.S.C. § 1227(a)(1)(B). Cheah conceded removability but in

January 2006 he filed an application for asylum, withholding of removal, and protection

under the United Nations Convention Against Torture (“CAT”) based on his claim that he

was persecuted in Malaysia due to his Chinese ethnicity.

       At his removal proceeding, Cheah testified to the long-standing and systemic

discrimination against ethnic-Chinese in Malaysia. As to his personal experiences, Cheah

asserted that his house was broken into and robbed multiple times. He also claimed that,

after he and a friend were robbed at knife-point, the police advised him to “let it go”

because he had not suffered any physical harm. Further, Cheah’s statement in support of

his asylum application asserted that he was not allowed to attend college or obtain a stock

broker’s license due to his Chinese ethnicity. He attended college in Singapore and found

employment in Malaysia as an “assistant to a stock broker.” Cheah testified that he did

not want to return to Malaysia because he was “afraid of being harmed” by ethnic-

Malays.

       The IJ denied all relief. He dismissed Cheah’s asylum claim as untimely, as it was

not filed within one year of his entry into the United States. The IJ then concluded that



                                              2
Cheah had not met his burden of proof to show that he merited withholding of removal or

CAT protection. The IJ acknowledged that the 2005 United States Department of State

Country Report for Malaysia indicated that ethnic-Malays “are given certain types of

benefits and so-called ‘special position’ when it comes to certain types of government

benefits. . . and [] that discrimination does exist . . . against people who are not ethnic

Malays.” He nevertheless determined that Cheah had not established past persecution or

demonstrated that he “has any reasonable fear of harm either at the hands of the

government or at the hands of his fellow citizens if he should return to Malaysia.”

       The BIA agreed that Cheah’s asylum claim was untimely, and determined that

Cheah did not demonstrate any extraordinary circumstance warranting an exception to the

filing deadline. The BIA then concluded that the IJ “properly determined that the

incidents of theft, assault, and discrimination the respondent recounted do not rise to the

level of persecution,” and that the testimony and evidence did not establish that it was

“more likely than not he will be subjected to harm rising to the level of persecution.” The

BIA further agreed that Cheah did not meet the standard for CAT protection.

       Through counsel, Cheah now petitions for review of the BIA’s final order of

removal.

                                               II

       We have jurisdiction to review the BIA’s final order of removal under 8 U.S.C. §

1252(a). The BIA’s decision is reviewed under the substantial evidence standard and will



                                               3
be upheld “unless the evidence not only supports a contrary conclusion, but compels it.”

Zubeda v. Ashcroft, 333 F.3d 463, 471 (3d Cir. 2003) (internal citation omitted).

       Substantial evidence supports the BIA’s decision that Cheah did not meet the

standard for withholding of removal.1 Withholding of removal is mandatory once “the

Attorney General decides that the alien’s life or freedom would be threatened in that

country” on account of race, religion, nationality, membership in a particular social group,

or political opinion. 8 U.S.C. § 1231(b)(3). To obtain such relief, the applicant must

establish a “clear probability”—i.e., that it is more likely than not—that he or she would

suffer persecution upon return to his or her country. Kaita v. Att’y Gen., 522 F.3d 288,

296 (3d Cir. 2008). “An applicant can meet the standard [for withholding of removal] by

proving past persecution, which creates a rebuttable presumption of future persecution.”

Id. (citing 8 C.F.R. § 1208.16(b)(1)).

       As the BIA determined, neither the generalized discrimination suffered by the

ethnic-Chinese in Malaysia nor that suffered personally by Cheah rises to the level of past

persecution. See Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir. 2005) (reiterating that

persecution connotes extreme behavior, including ‘threats to life, confinement, torture,

and economic restrictions so severe that they constitute a threat to life or freedom.’”




       1
         Cheah does not challenge the dismissal of his asylum claim as untimely. Even if
he did, we would lack jurisdiction to review that decision. See 8 U.S.C. § 1158(a)(3).
We note, however, that the government incorrectly argues that Cheah has failed to argue
that the BIA erred in denying his other claims of relief.

                                              4
(internal citation omitted)). While such discrimination may be reprehensible, it is not

persecution. See Chen v. Ashcroft, 381 F.3d 221, 233 n.20 (3d Cir. 2004) (stating that

courts “routinely deny relief to those who suffer racial discrimination that falls short of

‘persecution’”). To the extent that Cheah claims that the robberies constituted

persecution, this argument also fails, as he set forth no evidence that these were anything

more than isolated criminal acts. See Lie, 396 F.3d at 536. In sum, neither the

documentary evidence nor Cheah’s testimony established past persecution or a clear

probability that he would be persecuted upon his return to Malaysia. See Zubeda, 333

F.3d at 469-70. Accordingly, he is not entitled to withholding of removal.

       Finally, because Cheah offered no evidence that he is likely to be tortured upon his

return to Malaysia, he also failed to establish eligibility for CAT protection. See 8 C.F.R.

§ 208.16(c)(4).

       For the foregoing reasons, we deny Cheah’s petition for review.




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