                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-12-2009

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2117




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009

Recommended Citation
"Tjiong v. Atty Gen USA" (2009). 2009 Decisions. Paper 2060.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/2060


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 2009 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                                             NOT PRECEDENTIAL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. 07-2117
                     ________


        SHERLA A. TJIONG; IBNU TOHIR,

                                      Petitioners

                         v.

 ATTORNEY GENERAL OF THE UNITED STATES




        On Petition for Review of Order of the
            Board of Immigration Appeals
      (Agency Nos. A96-257-413; A96-257-414)
     Immigration Judge: Hon. Rosalind K. Malloy
      ____________________________________


      Submitted under Third Circuit LAR 34.1(a)
                 on October 8, 2008


Before: MCKEE, NYGAARD and ROTH, Circuit Judges

           Opinion filed: January 12, 2009

                     ________

                   OPINION
                    ________



                         1
PER CURIAM:

       The petitioners, citizens of Indonesia, seek review of a final order of the Board of

Immigration Appeals (“BIA”). For the following reasons, we will deny the petition for

review.

                                              I.

       The petitioners, who are married, entered the United States in 2001. They were served

with notices to appear on April 18, 2003, charging them with being removal under INA §

237(a)(1)(B).   While they conceded that they were removable as charged, the lead

respondent, Tjiong, filed an application for asylum, withholding of removal, and relief under

the Convention Against Torture (“CAT”)1 on February 26, 2003. Her husband, Tohir, filed

his application for asylum and related relief on October 14, 2003. They claimed that they had

been persecuted in Indonesia due to their status as ethnic-Chinese Christians.

       At the petitioners’ 2005 removal proceeding, they waived their right to testify and

proceeded solely on their affidavits.      Both petitioners’ affidavits described life-long

harassment and discrimination by Muslim Indonesians. The seminal moment in their

experience as ethnic-Chinese Christians in Indonesia was the May 1998 riots, which they

claim that the police were unable to control. During the riot, Tjiong was trapped in her office




   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
with other workers because the streets were dangerous. Eventually, people began yelling

“Chink come out,” and a window in the building was broken as the building was stoned.

Tohir, on the other hand, listened on the radio to reports of the riot, left work and returned

to his house. Tjiong and others in his housing development gathered with weapons to protect

their homes, which, in the end, were not attacked. The next incident occurred in November

1998, when Muslim Indonesians burned churches in Jakarta. When the unrest began, the

petitioners were at home. Tohir and his neighbors again protected their homes, and Tjiong

stated that the police protected her neighbor’s house, which is where the women and children

hid. Although general unrest in Indonesia occurred in 1999 and 2000, the petitioners did not

claim to be directly affected. However, in January 2001, the petitioners became unable to

attend their church because of threats from an Islamic organization. The petitioners do not

claim that the church building was harmed, but stated that had to leave the church during the

middle of services because a group of Muslim Indonesians had gathered outside, whom they

did not believe that the police could control.

       The Immigration Judge (“IJ”) denied all relief except for voluntary departure. The

IJ denied the asylum applications as untimely, and found that the petitioners did not establish

that they were eligible for withholding of removal or CAT relief. In particular, the IJ

observed that the petitioners were not physically injured during any of the incidents, and that

they failed to demonstrate that they were persecuted on any protected ground because the

incidents were part of the general civil strife in Indonesia.



                                                 3
       On March 13, 2007, the BIA affirmed the IJ’s decision. It found that the IJ properly

determined that the asylum applications were untimely filed, and agreed with the IJ’s

“ultimate conclusion” that the petitioners did not establish past persecution or a clear

probability of future persecution. The BIA noted that that the petitioners were never

physically harmed and that during the November 1998 incident the police protected the house

where Tjiong hid. The BIA concluded that, while the incidents were “unfortunate”, the

petitioners did not meet the requirements for withholding of removal. The BIA further

determined that the petitioners failed to demonstrate their eligibility for CAT relief, finding

that the police protection in the November 1998 incident and the police response (though

ineffectual) to the January 2001 incident demonstrated that the government was not willfully

blind to torturous activity. See Silvia-Rengifo v. Att’y Gen., 473 F.3d 58, 70 (3d Cir. 2007).

                                              II.

       We have jurisdiction to review a final order of removal under 8 U.S.C. § 1252(a)(1).

Here, our jurisdiction is limited to review of the denial of withholding of removal and CAT

relief, as we do not have jurisdiction to review the denial of the petitioners’ applications for

asylum as untimely. See Sukwanputra v. Gonzales, 434 F.3d 627, 633-35 (3d Cir. 2006).

Under the circumstances of this case, we review only the BIA’s opinion. See Abdulai v.

Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001). We will uphold its findings to the extent they

are “supported by reasonable, substantial and probative evidence on the record as a whole.”

Kayembe v. Ashcroft, 334 F.3d 231, 234 (3d Cir. 2003).



                                               4
       We will deny the petition for review because the petitioners are not entitled to

withholding of removal or CAT relief. To obtain withholding of removal, the petitioners

were required to demonstrate that it is more likely than not that their lives or freedom would

be threatened in Indonesia on account of race, religion, nationality, membership in a

particular social group, or political opinion. 8 U.S.C. § 1231(b)(3)(A); Miah, 346 F.3d 434,

439 (3d Cir. 2003). For relief under the CAT, they had to demonstrate that it is more likely

than not that they would be tortured if removed to Indonesia. 8 C.F.R. § 208.16(c)(2).

       The BIA held that the incidents that Tjiong complained of did not establish a clear

probability of persecution in Indonesia. We find no error in the BIA’s conclusion that the

incidents complained of, although serious and undoubtedly frightening, do not amount to

persecution, or demonstrate that it is more likely than not that the petitioners will be

persecuted if removed to Indonesia. Neither petitioner ever suffered any physical harm.

Witnessing the 1998 riots and other violent incidents that occurred in Indonesia does not

warrant a finding that the petitioners suffered sufficiently severe harm to constitute

persecution. See Singh v. INS, 134 F.3d 962, 967 (9th Cir. 1998) (general violence does not

rise to the level of persecution); see also Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir. 2005).

Similarly, the petitioners were not injured when their church was threatened, and they do not

claim that there was any damage to the church building. Such an incident does not constitute

persecution.

       We also find that substantial evidence supported the BIA’s determination that the



                                              5
petitioners were not eligible for CAT relief, as they did not establish government

acquiescence relating to an act of torture, nor to any torture inflicted in general. See 8 C.F.R.

§ 208.16(c)(2).




                                               6
