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


5-30-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3548




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 07-3548
                                     ___________

                EDDY TUMBEL; YUSMIN LEGAYANTI PARHUSSIP;
              ELLEN TIURMA TUMBEL; FRANSYE YOHANES TUMBEL;
                        CHRISTINE DAMERIA TUMBEL,
                                              Petitioners

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                                        Respondent
                    ____________________________________

                          On Petition for Review of an Order
                         of the Board of Immigration Appeals
                       (BIA Nos. A96-203-339, A97-966-004,
                     A97-966-005, A97-966-006, A97-966-007)
                    U.S. Immigration Judge: Charles M. Honeyman
                     ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    May 21, 2008
    Before:    SCIRICA, Chief Judge, CHAGARES and ALDISERT, Circuit Judges.

                                 (Filed: May 30, 2008)
                                     ___________

                              OPINION OF THE COURT
                                   ___________

PER CURIAM.

      Eddy Edward Tumbel, his wife, and three of his children, natives and citizens of

Indonesia, petition for review of an order of the Board of Immigration Appeals (BIA or
Board). The Board’s order adopted and affirmed an Immigration Judge’s (IJ’s) decision,

which found the family’s asylum applications untimely, and which denied withholding of

removal and protection under the Article 3 of the United Nations Convention Against

Torture (CAT).1 We will deny the petition for review.

       Tumbel entered the United States in 1995; his wife and two children came in 1999,

and a third child came in 2002. Petitioners stayed longer than permitted, and eventually

all filed asylum claims, although they did not file within one year of their respective

arrivals. In removal proceedings, the IJ determined that the asylum claims were barred as

untimely, and that no exception to the one-year filing deadline applied. The IJ, however,

considered the applications as applications for withholding of removal and protection

under the CAT.

       Tumbel and his family are ethnically Indonesian, but are sometimes perceived as

being Chinese, due to their light skin tone. The family is also Christian. Tumbel, who

was the only family member to testify, told of an incident in 1987 2 when he was

worshiping with others in his pastor’s home. A group of neighbors came to complain

because they were singing and clapping too loudly. The pastor asked the worshipers to

sing more quietly, but then four men approached and threw stones at the windows of the



   1
    The IJ granted voluntary departure, and the BIA extended the voluntary departure
period to 60 days from its August 2, 2007 decision.
   2
    The IJ’s decision gives the date as 1997, but a review of the testimony shows this is a
typographical error. A.R. 100, 141-42.

                                              2
church. A.R. 142. The pastor stopped the service, and from then on, the group met from

6:00 to 8:00 a.m. instead of 5:00 to 7:00 p.m., so they would not interfere with Muslim

prayer time. Id. Tumbel also noted that he was a teacher at a Christian school, and he

was subjected to verbal insults when people saw him in the parking lot of that school.

A.R. 145. Although she did not testify, Tumbel’s wife’s affidavit states that she was

robbed at work during the riots of May 1998. A.R. 320.

       As noted, the IJ found the asylum applications untimely, but he found that even if

they had been timely, he would not have found that what the petitioners had experienced

in Indonesia rose to the level of persecution. The IJ further found no evidence that

Petitioners would be singled out for persecution in the future, and concluded that

Petitioners had not shown there is a pattern or practice of persecution of Christians in

Indonesia. A.R. 110. The IJ noted that because Petitioners had not met the burden of

showing eligibility for asylum, they necessarily did not meet the higher burden for

withholding of removal; i.e., a showing that it was more likely than not they would be

persecuted in Indonesia. A.R. 111. The IJ further found no evidence that Petitioners

would be tortured in Indonesia. Id.

       The Board was not persuaded by Petitioners’ arguments that their asylum

applications should have been found timely, and found the IJ did not err in denying their

claims on the merits. The Board also noted that Petitioners had not established a pattern

or practice of persecution of Christians in Indonesia.



                                             3
       Petitioners filed a timely petition for review. Petitioners’ sole argument is that the

Board “erred in adopting the Immigration Judge’s finding that Respondent was not

eligible for Asylum and Withholding of Removal.” The brief contains a cursory review

of the facts and a brief discussion of the showing necessary for relief, but contains no

explanation of how the Board erred.

       Petitioners have not argued that the Board erred in finding their asylum claims

untimely, and they have therefore waived the issue. Chen v. Ashcroft, 381 F.3d 221, 235

(3d Cir. 2004).3 As the Government notes, even if Petitioners had made such an

argument in their brief, we would lack jurisdiction to consider any factual or discretionary

determinations regarding whether an exception to the one-year bar applied. Sukwanputra

v. Gonzales, 434 F.3d 627, 634 (3d Cir. 2006).

       We further agree with the Government that Petitioners did not exhaust their

administrative remedies with regard to a withholding of removal claim. A petitioner must

“raise and exhaust his . . . remedies as to each claim or ground for relief if he . . . is to

preserve the right of judicial review of that claim.” Abdulrahman v. Ashcroft, 330 F.3d

587, 594-95 (3d Cir. 2003). Although Petitioners’ brief to the Board asked that the IJ’s

order be overruled and that “their request for asylum, withholding of removal and

protection under the Convention Against Torture be granted,” the brief contained no




   3
   Similarly, as Petitioners made no mention of their claim for relief pursuant to the
CAT in their brief, the issue is waived.

                                                4
argument explaining how the IJ erred in denying withholding of removal. Similarly,

Petitioners’ brief here contains only a conclusory sentence that they “qualif[y] for

withholding of removal.”

       Assuming, arguendo that Petitioners’ withholding of removal claim were properly

exhausted, we would nevertheless agree with the Board that Petitioners did not

demonstrate a clear probability of persecution if they were to return to Indonesia. Zubeda

v. Ashcroft, 333 F.3d 463, 469-70 (3d Cir. 2003).

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




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