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


5-15-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1349




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 07-1349
                                      ___________

                              JIMMY SANJAYA TJOENG
                                                 Petitioner

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES

                      ____________________________________

                       On Petition for Review of an Order of the
                             Board of Immigration Appeals
                              (Agency No. A96-203-427)
                  Immigration Judge: Honorable Charles M. Honeyman


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     May 1, 2008

            Before: SLOVITER, STAPLETON and COWEN, Circuit Judges

                              (Opinion filed: May 15, 2008)
                                     ___________

                                       OPINION
                                      ___________

PER CURIAM

       Jimmy Sanjaya Tjoeng, a native and citizen of Indonesia, petitions for review of a

final order of the Board of Immigration Appeals (“BIA”). For the following reasons, we

will deny the petition for review.
                                              I.

       Tjoeng entered the United States in September 7, 2001, on a non-immigrant visa.

He overstayed the visa, and on April 6, 2003, he was issued a notice to appear to respond

to the charge that he was removable under 8 U.S.C. § 1227(a)(1)(B). Tjoeng conceded

removability, but applied for asylum, withholding of removal, protection under the

Convention Against Torture (“CAT”),1 and voluntary departure. His claims for relief

were based on persecution that he allegedly suffered as an ethnic-Chinese Christian in

Indonesia.

       On August 12, 2005, the Immigration Judge (“IJ”) denied all relief except for

voluntary departure. The IJ denied Tjoeng’s asylum application as untimely under 8

U.S.C. § 1158(a)(2)(D), and found that he would not be entitled for relief even if it were

timely. The IJ made a “mixed credibility” finding, stating that he believed that Tjoeng

was an ethnic-Chinese Christian and that some of the incidents he complained of may

have happened, but that he did not testify credibly as to the central event of his

claim—the purported looting and destruction of his business. Morever, the IJ determined

that even if Tjoeng’s story were true, the incidents complained of did not rise to the level

of past persecution, and that he did not demonstrate that it was clearly probable that he




   1
      United Nations Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85, implemented in
the United States by the Foreign Affairs Reform and Restructuring Act of 1998, 8 U.S.C.
§ 1231.

                                              2
would be persecuted if returned to Indonesia, as required for withholding of removal. The

IJ further found that Tjoeng had not satisfied the requirements under the CAT.

       Tjoeng timely appealed to the BIA. However, his brief did not address the IJ’s

timeliness determination, and the only reference to credibility was his statement that “if

[he] is determined credible, . . . []he should have no problem establishing the objective

prong of the persecution test.” The focus of Tjoeng’s argument was that he had

demonstrated past persecution and a fear of future persecution. The BIA dismissed

Tjoeng’s appeal because he failed to challenge the bases of the IJ’s decision (timeliness

and credibility), and because his “arguments on appeal fail[ed] to establish error in the

Immigration Judge’s decision.”

       Tjoeng now files a petition for review, which the government opposes.

                                             II.

       We have jurisdiction to review a final order of removal of the BIA under 8 U.S.C.

§ 1252(a)(1). Abdulai v. Ashcroft, 239 F.3d 542, 547 (3d Cir. 2001). Here, we review

both the IJ’s and BIA’s decisions. See Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir.

2002). The BIA’s and IJ’s factual findings are reviewed for substantial evidence, and we

review the legal conclusions de novo subject to the principles of deference articulated in

Chevron U.S.A., Inc. v. Natural Resources Defense Council Inc., 467 U.S. 837, 844

(1984). Briseno-Flores v. Attorney Gen., 492 F.3d 226, 228 (3d Cir. 2007).

       The government asserts that we do not have jurisdiction to consider the IJ’s


                                             3
credibility finding because Tjoeng did not exhaust his administrative remedies. We

agree. A petitioner must exhaust all administrative remedies available to him as of right

before the BIA as a prerequisite to raising a claim before this Court. 8 U.S.C. §

1252(d)(1); Wu v. Ashcroft, 393 F.3d 418, 422 (3d Cir. 2005). After reviewing Tjoeng’s

appeal to the BIA, we conclude that his statement that “if he is determined credible” he

will be able to “establish[] the objective prong of the persecution test,” is insufficient to

satisfy the exhaustion requirement. See Joseph v. Attorney Gen., 465 F.3d 123, 126 (3d

Cir. 2006) (noting that the “liberal exhaustion policy” was not fulfilled when the

petitioner did not alert the BIA to an issue he wished to appeal). Accordingly, we lack

jurisdiction to review this issue.2

       Second, to the extent that Tjoeng challenges the decision that he did not meet the

standard for withholding of removal, he has fallen decidedly short in demonstrating that

the decision was not supported by substantial evidence. See 8 U.S.C. § 1252(b)(4)(B).

An applicant can establish eligibility for withholding of removal either by: (1) creating a

rebuttable presumption of future persecution by demonstrating past persecution, or (2)

showing that it is more likely than not that he will suffer future persecution. 8 C.F.R. §


   2
       Tjoeng also did not request that the BIA consider the IJ’s denial of his asylum
application as untimely, and he has thus waived appellate review of that issue. See
Joseph, 465 F.3d at 126. We note that even if Tjoeng had exhausted his administrative
remedies as to the untimeliness finding, we lack jurisdiction to review that issue. See 8
U.S.C. § 1158(a)(3); Kaita v. Attorney Gen., ---- F.3d ----, 2008 WL 879052, at *6 (3d
Cir. Apr. 3, 2008).


                                              4
1208.16(b); see 8 U.S.C. § 1101(a)(42)(A). Because the IJ found that, even if true,

Tjoeng’s story did not demonstrate past persecution, he was required to show a clear

probability that he would be persecuted either by being singled out individually or

because of a “pattern or practice of persecution” of ethnic-Chinese Christians in

Indonesia. See 8 C.F.R. § 1208.16(b)(1), (2); Gambashidze v. Ashcroft, 381 F.3d 187,

191 (3d Cir. 2004).

       Tjoeng’s argument in support of his assertion that the IJ’s denial of his application

for withholding of removal was made without substantial evidence consists of a

statement that “through his testimony,” he “clearly established the subjective prong of the

fear of persecution test.” However, “unlike asylum, withholding of removal does not

require . . . that the petitioner have a subjective fear of persecution;” rather, he must

“only demonstrate a ‘clear probability’ of persecution if returned to his home country.”

Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005); see also Guo v. Ashcroft, 386

F.3d 556, 561 n.4 (3d Cir. 2004). Thus, Tjoeng’s argument in support of his assertion

that the IJ’s decision was incorrect is entirely inadequate because he fails to challenge the

IJ’s findings that he did not suffer past persecution and that he did not demonstrate that it

is clearly probable that he will be persecuted if he returns to Indonesia.

       For these reasons, and after careful consideration of the record and the parties’

contentions, we will deny Tjoeng’s petition for review.




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