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


12-12-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3707




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                                                NOT PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                   ____________

                      No. 06-3707
                     ____________

                    KHANG TJHIN,

                                            Petitioner,

                            v.

    ATTORNEY GENERAL OF THE UNITED STATES,

                                            Respondent.
                     ____________

             On Petition for Review from an
        Order of the Board of Immigration Appeals
                (Board No. A96-204-314)
      Immigration Judge: Honorable Donald V. Ferlise
                      ____________

        Submitted Under Third Circuit LAR 34.1(a)
                   December 10, 2007

Before: McKEE, CHAGARES and HARDIMAN, Circuit Judges.

               (Filed: December 12, 2007)

                     ____________

               OPINION OF THE COURT

                     ____________
HARDIMAN, Circuit Judge.

       Khang Tjhin petitions for review of an order of the Board of Immigration Appeals

(BIA) denying his application for withholding of removal and relief under the Convention

Against Torture (CAT).

                                             I.

       Tjhin is a citizen of Indonesia and an ethnic Chinese Christian. He entered the

United States as a nonimmigrant visitor and remained here after his visa expired. After

he was served with a Notice to Appear, Tjhin admitted removability at his initial hearing

and conceded that he did not timely file for asylum, but requested relief in the form of

withholding of removal and protection under the CAT.

       Following a merits hearing, Immigration Judge (IJ) Donald V. Ferlise denied

Tjhin's requests for relief. Although the IJ deemed Tjhin’s testimony credible, he found

that Tjhin was ineligible for withholding of removal because: (1) Tjhin did not experience

harm based on his membership in a protected class; (2) even if Tjhin experienced harm

based on his membership in a protected class, this harm did not amount to persecution;

and (3) Tjhin did not demonstrate a clear probability of future persecution. The IJ also

found Tjhin ineligible for CAT protection because he did not demonstrate a clear

probability of torture upon return to Indonesia.

       On appeal, the BIA adopted and affirmed the findings of the IJ in a per curiam

opinion. Tjhin filed a timely petition for review.



                                             2
                                             II.

       The crux of Tjhin's claims for relief is that he suffered persecution in Indonesia on

account of his Chinese ethnicity and Christian faith and that he fears future persecution if

he is forced to return. At his merits hearing before the IJ, Tjhin described a May 1998

incident in which his family was harassed by native Indonesian rioters while bringing his

mother to a hospital for diabetes treatment. He testified that the rioters had looted and

destroyed Chinese-owned businesses in the area, and that they began shouting "Chinese,

Chinese, kill, kill" when they saw his family. Tjhin testified that he and his family feared

for their lives and remained in the hospital for two days to avoid the rioters.

       Tjhin also testified that he had been harassed by native Indonesians all his life, and

that even as a small child, native Indonesian children would taunt him, beat him up, and

take his toys and money. Tjhin indicated that this harassment continued throughout high

school and college, testifying that native Indonesians took money from him

approximately fifty times during this period and that they would kick or hit him if he

refused.

       Finally, Tjhin stated that he would feel unsafe if he returned to Indonesia, citing

the numerous church bombings that have occurred as well as the harassment he has

endured. Tjhin testified that this harassment has persisted after the May 1998 riots and

that his family's native Indonesian Muslim neighbors have continued to insult and

demand money from them.



                                              3
       The IJ denied Tjhin's requests for relief. Although the IJ found Tjhin's testimony

credible, he concluded that Tjhin had not been targeted based on his membership in a

protected class. The IJ also determined that even if Tjhin had been targeted because of

his membership in a protected class, the harm he experienced did not rise to the level of

persecution. Finally, the IJ determined that Tjhin had not demonstrated a clear

probability of persecution or torture upon his return to Indonesia.

       The BIA denied Tjhin's appeal, adopting and affirming the IJ's findings that Tjhin

was ineligible for withholding of removal or protection under the CAT.

                                            III.

       We begin by considering the IJ's determination that Tjhin did not experience harm

on account of his membership in a protected class. This determination is reviewed under

the substantial evidence standard, which requires it to be upheld unless the evidence

would "compel a reasonable factfinder to conclude" otherwise. Lie v. Ashcroft, 396 F.3d

530, 535-36 (3d Cir. 2005).

       In this case, the IJ concluded that the native Indonesians' repeated demands for

money were motivated not by Tjhin's ethnicity or religion, but rather by their belief that

Tjhin had money and had become an easy mark or target. While this is possible, the IJ's

analysis ignores the possibility that the native Indonesians were motivated by Tjhin's

Chinese ethnicity as well - that they had "multiple motivations for [their] conduct."

Lukwago v. Ashcroft, 329 F.3d 157, 170 (3d Cir. 2003). The IJ also saw no connection

between Tjhin's encounter with the native Indonesian rioters in May 1998 and Tjhin's

                                             4
ethnicity or religion. Given that the mob had already targeted Chinese-owned businesses

and began to shout "Chinese, Chinese, kill, kill" upon encountering Tjhin and his family,

we cannot see how this incident was motivated by anything other than Tjhin's ethnicity.

Therefore, we disagree with the IJ’s initial finding and conclude that the harm Tjhin

experienced was on account of his membership in a protected class.

       Although we find that the IJ erred in determining that Tjhin was not harmed on

account of his ethnicity, our precedents make clear that the harm Tjhin suffered was not

sufficiently severe to constitute "persecution.” In Fatin v. INS, we defined persecution as

"threats to life, confinement, torture, and economic restrictions so severe that they

constitute a threat to life and freedom." 12 F.3d 1233, 1240 (3d Cir. 1993). Although

Tjhin's May 1998 encounter with native Indonesian rioters was undoubtedly frightening,

it was an isolated incident in which neither Tjhin nor his family sustained any physical

injury. See Lie, 396 F.3d at 536 (finding that an isolated incident in which the asylum

applicant suffered a knife wound did not constitute persecution). Similarly, although

Tjhin’s repeated experiences of harassment are troubling, they do not meet the stringent

standard that we articulated in Fatin.1 Therefore, even when these incidents are taken




       1
         Tjhin cites a Ninth Circuit case, Borja v. INS, 175 F.3d 732 (9th Cir. 1999), for
the proposition that “beatings and assaults for the purposes of financial extortion
constitute persecution.” However, Borja involved what the Ninth Circuit called
“extortion plus,” in which the individual in question was threatened with a gun, slashed in
the shoulder, and told that she would be killed if she did not pay.

                                              5
cumulatively, we conclude that Tjhin has not suffered harm that is sufficiently severe to

constitute persecution.

       Tjhin has also failed to establish the "clear probability" of future persecution that is

required for withholding of removal. In order to meet the less stringent "well-founded

fear" standard that is applicable to asylum claims, Tjhin must demonstrate either that he

faces an individualized risk of persecution or that there is a "pattern or practice" of

persecution of Chinese Christians in Indonesia. Lie, 396 F.3d at 537. Tjhin has not

shown that he would be singled out for persecution upon return to Indonesia; in addition,

although there is evidence that some anti-Chinese violence persists in Indonesia, it does

not rise to the level of a "pattern or practice." See Lie, 396 F.3d at 537. Because Tjhin

has "fail[ed] to establish the well-founded fear of persecution required for a grant of

asylum, [he] will, by definition, have failed to establish the clear probability of

persecution required for withholding of deportation." Zubeda v. Ashcroft, 333 F.3d 463,

469-70 (3d Cir. 2003). Therefore, we conclude that Tjhin's claim for withholding of

removal fails.

       Finally, we note that Tjhin has not provided any reason why he would be subjected

to torture if he is returned to Indonesia. Therefore, we conclude that his claim for

protection under the CAT fails.




                                             IV.

                                              6
       For the foregoing reasons, we will affirm the decision of the BIA and deny Tjhin's

petition for review.




                                            7
