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


5-6-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4518




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"Tinah v. Atty Gen USA" (2008). 2008 Decisions. Paper 1266.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1266


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                                                    NOT PRECEDENTIAL

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT
                      __________

                         No. 06-4518
                         __________

                       SALAM TINAH,

                                       Petitioner

                               v.

     ATTORNEY GENERAL OF THE UNITED STATES,

                                       Respondent




           On Petition for Review of an Order of the
                Board of Immigration Appeals
                  (Agency No. A96-257-839)
              Immigration Judge: Donald Ferlise


          Submitted under Third Circuit LAR 34.1(a)
                     on January 18, 2008


Before: SCIRICA, Chief Judge, BARRY and ROTH, Circuit Judges

                 (Opinion filed: May 6, 2008)




                          OPINION
ROTH, Circuit Judge:

       Salam Tinah seeks review of a final order of the Board of Immigration Appeals (BIA)

affirming the decision of an Immigration Judge (IJ) ordering Tinah removed from the United

States and denying his application for withholding of removal and protection under the

Convention Against Torture. Tinah now argues that the IJ failed to properly apply the law

when he determined that Tinah had not shown that he was more likely than not to face

persecution or torture as a result of his deportation.1 Finding no error, we will affirm.

I. BACKGROUND

       Tinah argues that he was subject to persecution in the past in Indonesia, and that he

would also be subject to persecution in the future if he were to return. Tinah is a native and

citizen of Indonesia; he is also an ethnic Chinese and a Buddhist. In his testimony, which the

IJ found to be credible, he set forth two examples of alleged persecution that he suffered

because of his ethnicity and religion.

       In 1978, Tinah’s father was arrested after a public restroom near his place of business

was set on fire. It is not clear whether he was ever charged with a crime, but in any event he

was held in prison for six months. The other incident occurred in 1999 when Tinah’s in-laws

asked him for money. After he refused, they prevailed upon his wife to seek a divorce, which

she did.


  1
    It is unclear whether Tinah is also appealing the denial of asylum based on his failure to
file for asylum within one year of arriving in the United States. In any event, we have no
jurisdiction to review such an appeal, as the Attorney General has determined that his asylum
application was not timely. 8 U.S.C. § 1158 (a)(3).

                                              2
       Tinah entered the United States on or about April 17, 2001, as a non-immigrant visitor

for pleasure and was authorized to remain in the United States through October 16, 2001.

On March 7, 2003, the former Immigration and Naturalization Service commenced removal

proceedings against Tinah, charging that he was removable as an alien who, after admission

as a non-immigrant, has remained in the United States for a time longer than permitted. On

February 16, 2003, Tinah filed an application for asylum and for withholding of removal

based on the danger of future persecution and torture. Tinah acknowledged at his hearing

that his asylum application was not timely.

       Following a hearing on the merits of Tinah’s application, the IJ issued an oral decision

on May 10, 2005, denying his petition. Tinah appealed the decision to the BIA. In an order

issued on September 20, 2006, the BIA adopted and affirmed the IJ’s decision and dismissed

Tinah’s appeal. Tinah then filed the instant petition for review of his application for

withholding of removal with this Court.

       We have exclusive jurisdiction to review final orders of removal pursuant to INA

Section 242(a)(1). 8 U.S.C. § 1252(a)(1) (2005), as amended by The REAL ID Act of 2005,

§ 106, Pub. L. No. 109-131, Div. B, 119 Stat. Tinah’s petition for review was timely filed

and venue is proper because the proceedings before the IJ were concluded in Philadelphia,

Pennsylvania.

       Where, as here, the Board summarily affirms and adopts the IJ’s decision, this Court

reviews the decision of the IJ. Tarrawally v. Ashcroft, 338 F.3d 180, 184 (3d Cir. 2003).



                                              3
Our review of the application of legal principles to undisputed facts is de novo. Sun Wen

Chen v. U.S. Att’y Gen., 491 F.3d 100, 109 (3d Cir. 2007).

II. DISCUSSION

       A. Withholding

       To qualify for withholding of deportation, Tinah must show that it is more likely than

not that he will suffer persecution on account of a protected ground (race, religion,

nationality, membership in a particular social group, or political opinion) if he is deported.

See 8 U.S.C. § 1231(b)(3)(A); INS v. Stevic, 467 U.S. 407, 422 (1984). One way that he may

meet this burden is by showing past persecution, which raises a rebuttable presumption of

future persecution. See 8 C.F.R. §§ 208.16(b)(1). We have defined persecution as “threats

to life, confinement, torture, and economic restrictions so severe that they constitute a threat

to life or freedom.” Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir. 2005) (quoting Fatin v. INS,

12 F.3d 1233, 1240 (3d Cir. 1993)).

       The IJ applied this standard correctly in finding that the acts narrated by Tinah in his

testimony simply do not rise to the level of persecution. The arrest of a relation, apparently

on suspicion of having committed a crime, does not meet the standard for persecution.

Extortionate behavior by in-laws, however reprehensible, also fails to rise to the level of

persecution. Accordingly, we find that Tinah has not been subjected to past acts of

persecution that would give rise to a presumption of future persecution.




                                               4
       Tinah does not present any other specific evidence that he faces future persecution but

argues that he faces persecution based on a general pattern of persecution against ethnic

Chinese Buddhists in Indonesia. In order to establish a pattern of persecution, Tinah must

show that the persecution of the group is “systemic, pervasive, or organized.” Lie v. Ashcroft,

396 F.3d 530, 537 (3rd Cir. 2005). In addition, as with any claim of persecution, violence or

other harm perpetrated against the petitioner's group does not constitute persecution unless

such acts are committed by the government or forces the government is either “unable or

unwilling to control.” Id.

       The evidence on the record shows that anti-Chinese and anti-Buddhist sentiments exist

in Indonesia, and that at least some acts of violence were committed against Chinese

Buddhists as recently as 2000. However, the State Department 2004 Country Report on

Indonesia states that the Indonesian government officially promotes religious tolerance, and

that anti-Chinese incidents have declined compared to recent years. Any violence that

continues to take place seems to be primarily committed by fellow citizens and not as the

result of governmental action or acquiescence. Accordingly, we are not compelled to find

that such attacks constitute a pattern or practice of persecution against Chinese Buddhists.

       B. Convention Against Torture

       Withholding under the Convention Against Torture requires that the applicant

“establish that it is more likely than not that he or she would be tortured if removed to the

proposed country of removal.” See 8 C.F.R. § 208.16(c)(2). While Tinah mentions the



                                              5
Convention Against Torture, he does not provide any specific evidence showing that he faces

torture if he returns to Indonesia. He cannot carry his burden by relying on general

allegations about Indonesia. See Lie, 396 F.3d at 537-38. Accordingly, we find that he has

failed to carry his burden under the Convention Against Torture.

III. CONCLUSION

       For the foregoing reasons, we will deny the petition for review.




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