Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
9-20-2007
Tjen v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-1574
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 06-1574
THERESIANA C. TJEN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of an Order
of the Board of Immigration Appeals
(No. A96-266-639)
Immigration Judge: Hon. Miriam Mills
Submitted Under Third Circuit LAR 34.1(a)
September 17, 2007
Before: SLOVITER, SMITH, and WEIS, Circuit Judges
(Filed: September 20, 2007)
OPINION
SLOVITER, Circuit Judge.
Petitioner Theresiana Tjen seeks review of an order of the Board of Immigration
Appeals (“BIA”) affirming the decision of the Immigration Judge (“IJ”) denying her
application for asylum, withholding of removal, and relief under the Convention Against
Torture. For the reasons that follow, we will deny Tjen’s petition for review.
I.
Tjen is a female native and citizen of Indonesia. She entered the United States on
January 13, 2001 as a nonimmigrant visitor with authorization to remain temporarily until
July 12, 2001. On June 2, 2003, the government served her with a notice to appear,
charging her with being subject to removal for remaining in the United States beyond her
admission period in violation of section 237(a)(1)(B) of the Immigration and Nationality
Act. On October 27, 2004, Tjen appeared before the IJ at a removal hearing, seeking
asylum, withholding of removal, and protection under the United Nations Convention
Against Torture (“CAT”). The IJ denied Tjen’s applications. Tjen thereafter timely
appealed the IJ’s decision to the BIA, which summarily affirmed the IJ’s decision.1 We
have jurisdiction to review this petition pursuant to 8 U.S.C. § 1252(a)(1).
II.
This court reviews the BIA’s factual finding that an alien has failed to demonstrate
1
We review directly the IJ’s decision because the BIA
adopted the ruling of the IJ without further independent analysis.
Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002).
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eligibility for relief from removal under the “substantial evidence” test. Gao, 299 F.3d at
272. We will reverse only if no reasonable factfinder could have failed to find the past
persecution necessary to sustain the petitioner’s burden. See 8 U.S.C. § 1252(b)(4)(B);
INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992) (reversal permitted only where the
record evidence “compels” a reasonable factfinder to reach a contrary determination).
III.
To be eligible for asylum under section 208 of the INA, 8 U.S.C. § 1158, the
applicant must demonstrate “persecution or a well-founded fear of persecution on account
of race, religion, nationality, membership in a particular social group, or political
opinion[.]” See 8 U.S.C. § 1101(a)(42)(A). To be eligible for withholding of removal
under section 241(b)(3) of the INA, 8 U.S.C. § 1231(b)(3), the applicant must
demonstrate that his “life or freedom would be threatened in [the country of removal]
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). To qualify for relief under the CAT, the
applicant must demonstrate that it is more likely than not that he would be tortured if
removed. 8 C.F.R. § 208.16(c)(2).
Tjen contends that the IJ failed to specifically conclude that she did not suffer past
persecution. We disagree. Although the IJ found that the background material submitted
corroborated Tjen’s report of civil rioting, she concluded that “other than suffering
trauma from witnessing the civil rioting . . . and facing threats the . . . only direct harm [to
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Tjen and her family] was to lose the contents of their home.” App. at 36.
Tjen also contends that the violence the ethnic Chinese experienced during the
May 1998 civil riots will reoccur and that her alleged well-founded fear of future
persecution if she returns is based on continued contact with family members who have
informed her that there are continued demonstrations and riots in which the Chinese are
always targets. The IJ concluded, however, that Tjen “has provided absolutely no reliable
background of current conditions in Indonesia which would establish that ethnic Chinese .
. . will more likely than not be harmed because of their identities,” App. at 38-39, and that
she “failed to . . . show any clear probability that she would be subjected to persecution
on account of one of the enumerated asylum grounds.” App. at 39.
In Lie v. Ashcroft, 396 F.3d 530 (3d Cir. 2005), we explained that persecution is
limited to “threats to life, confinement, torture, and economic restrictions so severe that
they constitute a threat to life or freedom.” Id. at 536 (internal citation and quotation
marks omitted). To establish a well-founded fear of persecution, the petitioner must
demonstrate through credible testimony that his or her fear is genuine and that,
objectively, “a reasonable person in the alien’s circumstances would fear persecution if
returned to the country in question.” Id. (internal citation and quotation marks omitted).
The IJ concluded that: (1) Tjen “was unable to cite any current country conditions
in Indonesia currently which support her claim that she has a well-founded fear of
persecution if she returns to Indonesia, i.e.[,] that she will more likely than not be harmed
4
if she returns to Indonesia based on her Chinese ethnicity and/or her Buddhist religion”;
(2) Tjen “has not shown that the government is unwilling or unable to . . . protect citizens
from terrorists reasonably”; and (3) that the “continued presence of [Tjen’s] family in
Indonesia unharmed for . . . a period of time after her departure reduces the
reasonableness of her expressed fear of persecution.” App. at 38, 40, 41.
Given our highly deferential standard of review, we see no reason to disturb the
findings of the IJ, as they were “supported by reasonable, substantial, and probative
evidence on the record considered as a whole.” Elias-Zacarias, 502 U.S. at 481, and we
are not persuaded in this case that a “reasonable adjudicator would be compelled to
conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
IV.
We conclude that the IJ’s decision that Tjen did not suffer past persecution and
would not be subject to torture upon return to Indonesia was supported by substantial
evidence. Accordingly, we will deny her petition.
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