                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-4-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4208




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006

Recommended Citation
"Thiem v. Atty Gen USA" (2006). 2006 Decisions. Paper 362.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/362


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                                    NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 05-4208


                                    SIE GIE THIEM,
                                          Petitioner

                                             v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                              Respondent
                                ______

                          On petition for review of a final order
                          of the Board of Immigration Appeals
                                 (BIA No. A97-149-990)
                                          _____

                   Submitted pursuant to Third Circuit L.A.R. 34.1(a)
                                 September 29, 2006

               Before: RENDELL, ROTH, and GIBSON,* Circuit Judges.

                                 (Filed October 4, 2006 )


                               OPINION OF THE COURT

PER CURIAM

       This petition for review challenges the Board of Immigration Appeals' (BIA) order

affirming an Immigration Judge's (IJ) order to deny a deportable alien's claim to asylum,


   *
     Honorable John R. Gibson, Senior Circuit Judge, United States Court of Appeals for
the Eighth Circuit, sitting by designation.
withholding of removal, and protection under Article 3 of the Convention against Torture.

We will deny the petition for review.

                                              I.

       Petitioner Sie Gie Thiem, an ethnic Chinese and Buddhist, is a native and citizen

of Indonesia. He was admitted into the United States on October 24, 2000, as a

nonimmigrant B-2 with authorization to remain in the United States for a temporary

period ending April 23, 2001. Without authorization from the Immigration and

Naturalization Service, now a component of the Department of Homeland Security,

Thiem remained in the United States beyond the specified date. On June 13, 2003, the

Department of Homeland Security placed him in removal proceedings.

       At Thiem's removal hearing on November 5, 2003, Thiem conceded removability

and stated his intent to seek asylum, withholding of removal, and CAT protection. Thiem

filed an application for asylum and withholding of removal on January 11, 2004, more

than three years after his arrival in the United States. In his application for asylum and

withholding of removal, Thiem described three incidents that occurred in Indonesia that

form the basis of his request for asylum and withholding of removal. He asserted that, as

a child, he was robbed by unidentified individuals who cut him with a razor and called

him a "Chinese dog." On another occasion, also as a child, he was punched inside a

cinema by men yelling "Chinese move." Finally, he asserted that on January 26, 2000, he

was nearly robbed of his motorbike and beaten on the leg with wooden clubs by people in

his area, some of whom he knew.



                                             -2-
       Thiem conceded at his May 18, 2004, merits hearing that both robberies were most

likely motivated by money. Thiem also testified that he filed an application for asylum in

the United States because of his fears concerning riots that occurred in Surabaya in May

of 1998. Thiem conceded, however, that while rioting occurred in his area, nothing

happened to him personally.

       Following the merits hearing, the IJ pretermitted and denied Thiem's asylum

application as untimely filed, alternatively denied the asylum application upon the merits,

and denied Thiem's withholding of removal and CAT protection claims. On appeal, the

BIA adopted and affirmed the IJ's decision in a per curiam order.

                                             II.

       We have jurisdiction to review the decision of the BIA pursuant to 8 U.S.C. §

1252. Where the BIA issues its own opinion, we review the decision of the BIA. Gao v.

Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002). While Thiem focuses his brief upon the

denial of asylum, we lack jurisdiction to consider the BIA's determination that the asylum

petition was not timely and that there were no extraordinary circumstances excusing

lateness. See 8 U.S.C. § 1158(a)(3); Sukwanputra v. Gonzales, 434 F.3d 627, 634 (3d

Cir. 2006) (holding that discretionary determinations continue to fall outside of the

jurisdiction of the Court despite the changes enacted by the REAL ID Act).

       We retain jurisdiction, however, to review the denial of statutory withholding.1 On



   1
    The BIA also denied Thiem's application for protection under the Convention against
Torture. Thiem, however, did not raise the issue in his brief and therefore waived the
issue on appeal. See Nagle v. Alspach, 8 F.3d 141, 143 (3d Cir. 1993).

                                            -3-
appeal, we must affirm the BIA's decision if there is substantial evidence on the record to

sustain it. Abdille v. Ashcroft, 242 F.3d 477 (3d Cir. 2001). We may decline to uphold

the BIA's decision only if the evidence compels a contrary conclusion. INS v. Elias-

Zacarias, 502 U.S. 478, 481 n.1 (1992). In order to be entitled to withholding of removal,

an alien must demonstrate by a clear probability that upon return to his home country, the

alien's life or freedom would be threatened because of the alien's race, religion,

nationality, membership in a particular social group, or political opinion. 8 U.S.C. §

1231(b)(3)(A). This standard requires the alien to demonstrate that "it is more likely than

not that the alien would be subject to persecution." INS v. Stevic, 467 U.S. 407, 424

(1984).

       An alien can establish eligibility for withholding of removal either by

demonstrating past persecution or by showing the likelihood of future persecution. 8

C.F.R. § 1208.16(b). Persecution has been defined to include "threats to life,

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

life or freedom." Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993). In the event that an

alien cannot demonstrate past persecution, an alien may still be eligible for withholding of

removal by demonstrating "that in that country there is a pattern or practice of persecution

of a group of persons similarly situated to the applicant" on account of a protected

ground. 8 C.F.R. § 208.16(b)(2)(i).

       Reviewing the record, we conclude that substantial evidence supports the BIA's

conclusion. We have found that "two isolated criminal acts, perpetrated by unknown



                                             -4-
assailants, which resulted only in the theft of some personal property and a minor injury,

is not sufficiently severe to be considered persecution." Lie v. Ashcroft, 396 F.3d 530,

536 (3d Cir. 2005). The three incidents described by Thiem, while troubling, do not rise

to a level of severity needed for a claim for persecution.

       Likewise, we also found that in the course of a robbery, a "single ethnic slur was

insufficient to establish" a claim of persecution on the basis of ethnicity. Id. at 535.

Thiem provided no evidence regarding animus on the basis of ethnicity beyond the few

ethnic slurs that have been directed at him. His testimony that the robberies were

motivated by money, moreover, undermines his claim regarding persecution on the basis

of ethnicity. See Id. Substantial evidence therefore supports the BIA's conclusion that

Thiem had not established that he was the victim of past persecution.

       Reviewing the record, it appears that Thiem offered no evidence regarding any

likelihood of future persecution upon return to Indonesia. Thiem conceded that he had

two sisters living safely in Indonesia, which diminishes his claim of fear of future

persecution. See Id. at 537. The record also reveals no evidence submitted by Thiem

regarding a "pattern or practice" of persecution targeting ethnic Chinese in Indonesia. We

therefore also conclude that substantial evidence supports the BIA's conclusion that

Thiem did not establish a threat to his life or freedom upon return to Indonesia.

       Accordingly, we hold that the denial of withholding of removal was supported by

substantial evidence. The petition for review will be denied.




                                              -5-
