Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
7-7-2005
Tjen v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-2621
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 04-2621
___________
KOK SWIE TJEN; AUGUSTINA HIDAYAT
Petitioners
v.
* ALBERTO R. GONZALES, Attorney General of the United States
Respondent
(*Substituted pursuant to Rule 43(c), Fed. R. App. P.)
___________
Petition for Review of an Order of the
Board of Immigration Appeals
(No. A78-689-272 )
(No. A78-689-273)
___________
Submitted Under Third Circuit LAR 34.1(a)
July 1, 2005
Before: NYGAARD, SMITH, and FISHER, Circuit Judges.
(Filed July 7, 2005)
___________
OPINION OF THE COURT
___________
NYGAARD, Circuit Judge.
Husband and wife Kok Swie Tjen and Augustina Hidayat petition for
review of a decision of the Board of Immigration Appeals (“BIA”). We have jurisdiction
pursuant to 8 U.S.C. § 1252 and will deny the petition.
I.
Petitioners Tjen and Hidayat are ethnically-Chinese natives and citizens of
Indonesia. They entered the United States on January 8, 1999 and March 29, 1999,
respectively. On July 12, 2000, Tjen filed an application for asylum, withholding of
removal, and protection under the Convention Against Torture, claiming that he had been
persecuted because of his ethnicity, and claiming that if returned to Indonesia, he would
be persecuted on account of his ethnicity and his religious beliefs as a Jehovah’s Witness.
On April 4, 2002, Hidayat filed for asylum and associated relief, also claiming a fear of
persecution on account of her ethnicity and her religious beliefs as a Jehovah’s Witness.
The Immigration Judge denied their requests for relief and the BIA affirmed by opinion.
II.
Petitioners seek review on three issues: (1) whether they are entitled to
asylum; (2) whether they are entitled to withholding of removal; and (3) whether the BIA
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erred when it held that the Immigration Judge did not deny them due process. We reject
their arguments on all accounts and address each in turn.
A.
An alien seeking asylum must file an application for that relief within one
year of entering the United States. 8 U.S.C. § 1158(a)(2)(B). If the alien can demonstrate
materially changed circumstances affecting eligibility or “extraordinary circumstances
relating to the delay in filing [for asylum],” the failure to file a timely application may be
excused. Id. at § 1158(a)(2)(D). The BIA found Petitioners’ applications for asylum to
be untimely filed and lacking in changed or extraordinary circumstances sufficient to
excuse that untimeliness. We are without jurisdiction to review that determination and
will not do so here. See id. at § 1158(a)(3); Tarrawally v. Ashcroft, 338 F.3d 180, 185 (3d
Cir. 2003).
B.
Petitioners’ delay in filing for asylum does not deprive us of jurisdiction to
review their applications for withholding of removal. The Attorney General may not
remove an alien to a country where the alien’s life or freedom would be threatened on the
basis of race, religion, nationality, membership in a particular social group, or political
opinion. 8 U.S.C. § 1231(b)(3)(A). An alien seeking relief under this section must
establish the threat to life or freedom by a “clear probability,” which means “more likely
than not.” INS v. Stevic, 467 U.S. 407, 429–30 (1984). The BIA found Petitioners had
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failed to satisfy this standard. That finding of fact must be upheld unless Petitioners
present us with evidence compelling a contrary conclusion. See Abdille, 242 F.3d at
483–84. They have not done so. For that reason, we will not grant the Petition to review
the denial of withholding of removal.
C.
Nor will we grant the Petition on due process grounds. Petitioners claim
that a biased Immigration Judge and difficulties with the interpreter during their hearing
deprived them of due process. Due process affords an alien threatened with deportation
the right to a “full and fair” hearing with a “reasonable opportunity to present evidence.”
E.g., Abdulrahman v. Ashcroft, 330 F.3d 587, 596 (3d Cir. 2003). It also entitles the alien
to an impartial decisionmaker. Id. Petitioners have not convinced us that they have been
deprived of these rights. We therefore reject their due process claim.
III.
We are without jurisdiction to review the denial of Petitioners’ application
for asylum as untimely. As for their claim for withholding of removal, Petitioners have
submitted insufficient evidence to compel a finding that they are entitled to that relief.
Similarly, we are unpersuaded by their denial of due process claim. Accordingly, we will
deny the Petition for Review.
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