Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
8-1-2006
Tjin v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-2991
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-2991
SIAUW LAN TJIN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES;
SECRETARY OF DEPARTMENT OF HOMELAND SECURITY,
Respondents
On Petition for Review from an Order of the
Board of Immigration Appeals
(Agency No. A96 263 172)
Immigration Judge: Miriam K. Mills
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 30, 2006
BEFORE: SMITH and COWEN, Circuit Judges,
and THOMPSON*, District Judge
(Filed: August 1, 2006)
*Honorable Anne E. Thompson, Senior United States District Judge for the District of
New Jersey, sitting by designation.
OPINION
COWEN, Circuit Judge.
Siauw Lan Tjin petitions for review of an order of the Board of Immigration
Appeals (“BIA”), which adopted and affirmed an Immigration Judge’s (“IJ”) order
denying her application for asylum and withholding of removal pursuant to the
Immigration and Nationality Act (“INA”), and protection under the Convention Against
Torture (“CAT”). For the reasons stated below, we will deny the petition.1
I.
Because we write solely for the benefit of the parties, we recite only those facts
necessary to our analysis. Tjin is a citizen and native of Indonesia. On February 2, 2001,
she was admitted to the United States as a non-immigrant with authorization to remain
until March 1, 2001. On May 20, 2003, the former Immigration and Naturalization
Service (“INS”) served Tjin with a Notice to Appear charging her with removability
under 8 U.S.C. § 1227(a)(1)(B) for remaining in the United States longer than permitted.
Tjin conceded removability, but requested a grant of asylum, withholding of removal,
protection under CAT, and, in the alternative, the privilege of voluntary departure.
1
Tjin failed to challenge the denial of her CAT claim before the BIA, and, therefore,
we need not review the denial of that claim.
2
Tjin claims that she was persecuted in Indonesia on account of her Chinese
ethnicity. At the removal hearing, Tjin testified that on May 13, 1998, while she was
living with her mother and her sister in Semarang, Central-Java, Indonesia, two native
Indonesian men entered her home, assaulted her, and looted her property. She testified
that when three more native Indonesian men entered her home, she fled out of “fear that
they w[ould] rape me or they w[ould] do something else.” (A.R. at 54.) After the
incident, Tjin returned to the same home and continued to live there with her mother and
her sister until she came to this country in 2001.
Aside from the May 13, 1998 incident, Tjin testified that “[t]he other things that
occur[red] [were] sometimes those people would come to our house and ask[] for
money.” (A.R. at 54.) She also testified that “[s]ince [she] was a child, [she] [has]
fear[ed] all the time . . . other people throwing things at our homes.” (A.R. at 51.)
Following the hearing, the IJ denied Tjin’s applications for asylum, withholding of
removal, and protection under CAT, but granted her request for voluntary departure. As
to her asylum claim, the IJ determined that Tjin was not eligible for asylum because she
did not file her application within one year of her arrival in the United States, and,
moreover, that she failed to demonstrate changed circumstances affecting her eligibility
or extraordinary circumstances justifying her delay, pursuant to 8 U.S.C. § 1158
(a)(2)(D). The IJ concluded that even if her asylum application had been timely, Tjin was
not entitled to asylum because she had not met her burden of proving a reliable claim.
The IJ reasoned that there were inconsistencies in the record regarding her place of
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residence and her employment, which weakened her overall credibility. In addition, the
IJ noted that Tjin had not provided any medical evidence to corroborate her testimony
that she suffered and continues to suffer from mental trauma, even though that evidence
could have reasonably been obtained from a psychologist. For the same reasons, the IJ
denied her claims for withholding of removal and CAT protection.
The BIA entered an order affirming and adopting the IJ’s order, and this appeal
ensued.
II.
A.
With respect to her asylum claim, Tjin contends that the IJ committed legal error
when she failed to consider a United States Department of State Country Report on
Human Rights Practices in Indonesia in 2002 (“Country Report”) in determining whether
Tjin’s untimely asylum application was excused by changed circumstances affecting her
eligibility or extraordinary circumstances relating to the delay, as provided in 8 U.S.C. §
1252(a)(2)(D). We reject her contention for the reasons given below.
As an initial matter, the record contradicts Tjin’s bald assertion that the IJ did not
consider the Country Report. As indicated in the Oral Decision and Orders of the
Immigration Judge, the IJ considered the state of the ethnic relations in Indonesia as
reported in the Country Report in rendering her determination regarding the timeliness of
Tjin’s asylum application. (A.R. at 33-35.) The IJ noted that “[w]hile the Country
Reports indicate ethnic Chinese still may face discrimination and harassment, there is
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otherwise improvement shown in inter-ethnic relations involving ethnic Chinese, which
includes the open airing of their music and the circulation of Chinese language books.”
(A.R. at 35.)
If Tjin means to argue that the IJ should have found, based upon the information in
the Country Report and the other record evidence, that she had demonstrated the
existence of changed circumstances affecting her asylum eligibility or extraordinary
circumstances relating to the delay, that argument is also unavailing. Despite the changes
of the REAL ID Act of 2005, we do not have jurisdiction to review a factual
determination regarding whether an asylum applicant has demonstrated changed
circumstances affecting her eligibility or extraordinary circumstances relating to the
delay, See Sukwanputra v. Gonzales, 434 F.3d 627, 635 (3d Cir. 2006).
In summary, we conclude that the record belies Tjin’s claim of legal error, and we
have no jurisdiction to review her factual challenge to the IJ’s determination that her
untimely asylum application was not excused under 8 U.S.C. § 1252(a)(2)(D). As a
result, we will affirm the BIA’s denial of asylum.
B.
With regard to her withholding of removal claim, Tjin’s only contention on appeal
is that the record evidence establishes that she suffered past persecution in Indonesia,
such that there is a presumption that her life or freedom would be threatened if she were
removed there. The IJ did not expressly address the issue of whether the record evidence
establishes past persecution. Instead, the IJ concluded that Tjin had not met her burden of
5
proving a reliable claim because there were inconsistencies in the record regarding her
place of residence and her employment, and there was a lack of medical evidence in the
record corroborating her testimony that she suffered and continues to suffer from mental
trauma.2 Nevertheless, even assuming that Tjin’s testimony was credible and
corroboration was not necessary, we conclude that Tjin has not established a claim of past
persecution.
“In order to qualify for withholding of removal, an applicant must show a ‘clear
probability’ that his or her life or freedom would be threatened if s/he is deported. The
question under that standard is whether it is more likely than not that the alien would be
subject to persecution.” Mulanga v. Ashcroft, 349 F.3d 123, 132 (3d Cir. 2003) (internal
quotation marks and citations omitted). “The burden of proof is on the applicant for
withholding of removal . . . to establish that his or her life or freedom would be threatened
in the proposed country of removal on account of race, religion, nationality, membership
in a particular social group, or political opinion.” 8 C.F.R. § 1208.16(b). If the applicant
is determined to have suffered past persecution in the proposed country of removal, it
shall be presumed that the applicant’s life or freedom would be threatened in the future in
the country of removal on the basis of the original claim. 8 C.F.R. § 1208.16(b)(1)(i).
Tjin’s claim of past persecution is based on a single, isolated robbery that occurred
at her home in Indonesia on May 13, 1998. The record does not contain any evidence
2
Tjin has not challenged the IJ’s demand for corroboration and/or the IJ’s credibility
findings, and, therefore, we will not address those issues.
6
indicating that the intruders were motivated by Tjin’s ethnicity. In her I-589 application,
Tjin only speculates that their motivation “could be my appearance look like Chinese.”
(Pet’r App. at 24) (emphasis added).
Tjin testified that she “got some punches” when she attempted to stop the intruders
from coming into her home. However, her mother and sister, both of whom are also
Chinese and were present inside a bedroom during the robbery, were unharmed. (A.R. at
70.) Moreover, Tjin concedes that she did not attempt to contact the police to report the
incident, and after the incident she continued to live at the same residence for nearly three
years without incident before coming to the United States.
Under circumstances similar to those detailed above, we have concluded that an
asylum applicant failed to establish past persecution. See Lie v. Ashcroft, 396 F.3d 530,
532-36 (3d Cir. 2005) (concluding that an asylum applicant had not established past
persecution where, other than a single racial slur, there was no evidence that the two
robberies were motivated by ethnicity or religion, and the isolated robberies resulted only
in the theft of some property and a minor injury).
Based upon the record in this case, we conclude that Tjin has not established a
claim of past persecution, and that the IJ’s decision is supported by substantial evidence.
Accordingly, we will affirm the BIA’s denial of withholding of removal.
III.
For the foregoing reasons, the petition for review will be denied.
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