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


4-5-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4715




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                                            NOT PRECEDENTIAL

  IN THE UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
               _______________

                   No. 05-4715
                 _______________

                 TOEN LIK TAN,

                          Petitioner

                          v.

ATTORNEY GENERAL OF THE UNITED STATES,

                        Respondent
                 _______________

    Petition for Review of a Final Decision of the
            Board of Immigration Appeals
               (BIA No. A96-203-298)
Immigration Judge: The Honorable Rosalind K. Malloy
                  _______________

     Submitted Under Third Circuit LAR 34.1(a)
                 March 27, 2007

Before: FISHER, JORDAN and ROTH, Circuit Judges.

                (Filed April 5, 2007)
                 _______________

            OPINION OF THE COURT
                _______________
JORDAN, Circuit Judge.

       Toen Lik Tan, a citizen of Indonesia, petitions for review of the final order of

removal by the Board of Immigration Appeals (“BIA”) denying his application for

asylum, his application for withholding of removal, and his application for protection

under the Convention Against Torture (“CAT”). Tan has since waived his application

under the CAT. Regarding his other applications, Tan argues that the BIA and the

Immigration Judge (“IJ”) misapplied the law in deciding not to consider his untimely

asylum application and in evaluating his evidence of past persecution. Tan also argues

that his due process rights were violated because the IJ, in evaluating Tan’s credibility,

allegedly considered certain documents without providing Tan a meaningful opportunity

to respond to them. For the following reasons, we will deny the petition.

                                              I.

       Tan, a native Indonesian of Chinese descent, entered the United States as a visitor

in September 1998. On April 1, 2003, Tan received a notice to appear in removal

proceedings for staying in the United States after the expiration of his visitor status. He

filed an asylum application on July 15, 2003.

       In response to questions about the five-year delay in applying for asylum, Tan

testified that he relied on advice from an assistant at the law firm handling the asylum

application of his fiancee. According to Tan, that assistant told him and his fiancee that

the fiancee’s asylum application, if approved, would also serve as an application for him.



                                              2
Tan’s fiancee received asylum in May 2000. When asked why, after they were married in

June 2001, they delayed in filing a relative petition to secure asylum for Tan, Tan’s wife

testified that she knew a petition needed to be filed, but that they were having marital

problems.

       In support of his applications, Tan testified about several instances of alleged past

persecution against him and his family, based on their ethnicity and religion. First, Tan

stated that he had to attend private school as a child, because his parents knew that the

government would not have allowed a Chinese student to register in public school. Later,

in secondary school, some of his teachers made derogatory remarks about the Chinese and

punished him more severely than non-Chinese students. Second, Muslim neighbors

complained about Christian prayer meetings at Tan’s house and threw stones at the house,

injuring one of Tan’s friends. Third, in 1997, after Tan was involved in an automobile

accident, the local police, using ethnic slurs, threatened Tan with jail and demanded

money before returning his car. Fourth, in February 1998, Tan and a Chinese coworker

were robbed and beaten by Indonesians, who also used ethnic slurs. Tan was hospitalized

for his injuries. Fifth, after Tan arrived in the United States in 1998, his aunt and brother

in Indonesia were robbed, and bystanders refused to help them because they were

Chinese. The robbers allegedly nearly killed the aunt after cutting her arm with a knife.

       During cross-examination, Tan was questioned about discrepancies between his

testimony and an affidavit submitted by his brother in support of the brother’s asylum



                                              3
application. Specifically, the statements were inconsistent concerning some of the

circumstances claimed about prayer meetings at their home and the attack on their aunt.

       The IJ denied Tan’s applications. According to the IJ, Tan failed to demonstrate

extraordinary circumstances that would justify waiving the filing deadline for his asylum

application. Tan was therefore ineligible for asylum. As to the application for

withholding of removal and the CAT application, the IJ considered the evidence

presented by Tan and concluded that, even taking Tan’s account as true, the incidents did

not rise to the level of persecution. Therefore, the IJ concluded that Tan had failed to

establish a clear probability1 that he would be persecuted on his return to Indonesia and

that he was accordingly ineligible for withholding of removal. The IJ also concluded that

Tan had failed to show that it was more likely than not that he would be tortured on his

return and that he was therefore ineligible for relief under the CAT.

       On September 22, 2005, the BIA adopted and affirmed the IJ’s decision,

specifically agreeing that Tan was not eligible for asylum because his application was

untimely and that Tan’s testimony, even if credible, failed to establish his eligibility for

other relief. Because the BIA adopted the IJ’s decision, we review the decision of the IJ.

Abdulai v. Ashcroft, 239 F.3d 542, 549 n.2 (3d Cir. 2001).



  1
    In her decision, the IJ stated that Tan was not eligible for withholding of removal
because he had failed to show that he would “more likely than not” be persecuted on his
return to Indonesia. That standard is equivalent to the “clear probability” standard. INS
v. Stevic, 467 U.S. 407, 424 (1984) (“The question under that [clear probability] standard
is whether it is more likely than not that the alien will be subject to persecution.”).

                                              4
                                             II.

       Tan argues that the IJ erred as a matter of law in the analysis of Tan’s untimely

asylum application. That argument misunderstands the basis of the IJ’s decision.

       An alien must file an asylum application within one year of the alien’s arrival in

the United States. 8 U.S.C. § 1158(a)(2)(B). A late application may be considered if

there are “extraordinary circumstances relating to the delay in filing ... .” 8 U.S.C. §

1158(a)(2)(D). Importantly, this Court lacks jurisdiction to review a decision about the

timeliness of an asylum application, unless the petitioner raises “constitutional claims or

questions of law.” Sukwanputra v. Gonzales, 434 F.3d 627, 633-34 (3d Cir. 2006).

       Tan testified that his late filing should be excused because he relied on the advice

of a legal assistant handling his fiancee’s asylum case. According to Tan, because the

advice was given by a legal assistant, not a lawyer, the IJ committed legal error by

interpreting his testimony as a claim of ineffective assistance of counsel. Tan argues that,

as a result, the IJ improperly required Tan to abide by the procedures that accompany a

claim of ineffective assistance of counsel. But while it is true that certain procedural

requirements must be met for a claim of ineffective assistance of counsel to constitute

extraordinary circumstances justifying a late filing, see 8 C.F.R. § 208.4(a)(5)(iii), Tan’s

argument does not present a constitutional claim or question of law in this instance

because it does not address the actual basis of the IJ’s decision.




                                              5
       Contrary to Tan’s argument, the IJ did not refuse to consider Tan’s testimony

because Tan failed to follow the procedures for claiming ineffective assistance of

counsel. Rather, the IJ simply noted that those requirements were not followed but then

considered whether the advice given to Tan was an extraordinary circumstance justifying

a waiver of the filing deadline. In short, the IJ did not make the legal conclusion about

ineffective assistance of counsel that Tan contends was improper. Instead, the actual

decision reached by the IJ, after a review of what occurred, was that there was simply no

justification for waiving the deadline.

                                            III.

       Regarding his application for withholding of removal, Tan argues that the IJ erred

by failing to consider the cumulative effect of the incidents of alleged past persecution

presented by Tan.

       Tan frames this as a legal argument, apparently based on the fact that the IJ did not

discuss the “cumulative harm theory” as set forth in the Handbook on the Procedures and

Criteria for Determining Refugee Status, issued by the Office of the United Nations High

Commissioner for Refugees (“UNHCR Handbook”). The UNHCR Handbook, however,

“is not binding on the INS or American courts.” Abdulai, 239 F.3d at 553. Thus, Tan has

failed to raise a legal issue.

       Tan also appears to argue that, because the incidents he described, particularly the

physical attacks on him and his aunt, were severe and motivated at least in part by their



                                             6
Chinese ethnicity, the IJ erred in concluding that the incidents were not persecution. The

IJ’s decision must be upheld if it is supported by substantial evidence. INS v. Elias-

Zacarias, 502 U.S. 478, 481 (1992). “A BIA decision can only be reversed if the

evidence is such that a reasonable factfinder would be compelled to conclude otherwise.”

Chavarria v. Gonzales, 446 F.3d 508, 515 (3d Cir. 2006).

       Here, the evidence does not justify reversing the IJ’s conclusion that Tan was not

subjected to past persecution. To support withholding of removal, persecution must be

“‘on account of’ one of five enumerated grounds: ‘race, religion, nationality, membership

in a particular social group, or political opinion.’” Lie v. Ashcroft, 396 F.3d 530, 535 (3d

Cir. 2006) (citing 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 1208.13(b)(1)). Tan argues that

the attacks suffered by him and his aunt were motivated in part by their race and religion.

The IJ, however, concluded that those attacks, as well as the alleged police extortion,

were crimes rather than persecution on account of ethnicity and religion. Tan has failed

to demonstrate that the evidence compels a contrary interpretation. Cf. id. (concluding

that the BIA had substantial evidence to conclude that robberies, although accompanied

by ethnic slurs, were motivated by money). Thus, the IJ’s finding that past persecution

did not exist must be upheld.

       In addition, we must uphold the IJ’s finding that Tan had failed to establish that it

is more likely than not that he would be persecuted upon return to Indonesia. Indeed, the

reasonableness of Tan’s fear of future persecution, which he relied on to support his



                                              7
untimely asylum application, is diminished given that most of his family continues to live

in Indonesia and that his mother plans to return there because “it would be safe.” See Lie,

396 F.3d at 537 (“[W]hen family members remain in petitioner’s native country without

meeting harm ... the reasonableness of a petitioner’s well-founded fear of future

persecution is diminished.”) (citation removed). Similarly, those facts undercut Tan’s

claim that it is more likely than not that he would be persecuted on his return to

Indonesia.

                                             IV.

       Finally, Tan argues that his due process rights were violated during his hearing,

because the IJ relied on his brother’s affidavit in considering Tan’s credibility, and

allegedly did so without having given Tan notice that the affidavit would be in the record

and without allowing Tan’s brother to testify in response. We need not address the

circumstances of the hearing, however, because to successfully raise a due process claim,

Tan must first show that he was substantially prejudiced by the alleged procedural

violation. Avila-Macias v. Ashcroft, 328 F.3d 108, 114-15 (3d Cir. 2003). Here, the IJ

and the BIA expressly stated that even if Tan were credible he was not eligible for relief.

Therefore, because neither the IJ nor the BIA relied on an adverse credibility

determination, Tan was not prejudiced, and his due process argument fails.

                                             V.

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



                                              8
