Tjie v. Gonzales

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 12, 2006

Charles R. Fulbruge III
Clerk
No. 05-60795
Summary Calendar

RIO FOLKLAND CITRA TJIE

Petitioner

v.

ALBERTO R GONZALES, US ATTORNEY GENERAL

Respondent

--------------------
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A96 290 387
--------------------

Before KING, WIENER and DeMOSS, Circuit Judges.

PER CURIAM:*

Rio Folkland Citra Tjie, a native and citizen of Indonesia

who is an ethnic Chinese and a Roman Catholic, petitions for

review of the order of the Board of Immigration Appeals (BIA)

dismissing his appeal of the decision of the immigration judge

(IJ). The IJ rejected Tjie’s application for asylum as untimely

and denied his applications for withholding of removal and for

relief under the Convention Against Torture (CAT).

*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
 No. 05-60795
-2-

We lack jurisdiction to review Tjie’s challenge to the IJ’s

rejection of his asylum application as time-barred. See 8 U.S.C.

§§ 1158(a)(2)(B), (a)(2)(D), (a)(3); see also Sokolov v.

Gonzales, 442 F.3d 566, 568-69 (7th Cir. 2006). Although the

REAL ID Act retroactively restored this court’s jurisdiction to

review constitutional claims and questions of law regarding final

orders of removal in many circumstances where such review

otherwise would be barred, the determination whether a “change in

circumstances” or “extraordinary circumstances” justified Tjie’s

failure to file his asylum application in a timely manner does

not involve such a constitutional claim or legal question.

We will uphold the finding that an alien is not eligible for

withholding of removal or relief under the CAT if that finding is

supported by substantial evidence. Zhang v. Gonzales, 432 F.3d

339, 344 (5th Cir. 2005). When the BIA has summarily affirmed

the IJ’s decision, as here, we review the IJ’s decision. See

Majd v. Gonzales, 446 F.3d 590, 594 (5th Cir. 2006). The

substantial evidence standard requires that the agency decision

be based on the record evidence and that the decision be

substantially reasonable. Carbajal-Gonzalez v. INS, 78 F.3d 194,

197 (5th Cir. 1996). Under this standard, the IJ’s determination

will be affirmed unless the “evidence compels a contrary

conclusion.” Id.

Tjie has not established that the evidence compels a

conclusion that it is “more likely than not” that he will be
 No. 05-60795
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persecuted if returned to Indonesia. See Roy v. Ashcroft, 389

F.3d 132, 138-39 (5th Cir. 2004); Zhang, 432 F.3d at 344.

Although Tjie testified that he and his mother and father were

robbed and attacked by ethic Indonesian Muslims in 2001, he has

not established that this isolated incident, which the IJ

determined was motivated primarily by robbery, amounted to past

persecution or demonstrated a clear probability that Tjie would

be subjected to persecution if returned to Indonesia. See Eduard

v. Ashcroft, 379 F.3d 182, 187-88 (5th Cir. 2004); Abdel-Masieh

v. United States INS, 73 F.3d 579, 583-84 (5th Cir. 1996). Tjie

is correct that his claim may be based solely on his own oral

testimony. See 8 C.F.R. § 208.16(b). The IJ did not err,

however, by noting that he had provided no supporting

documentation, because this observation was made in conjunction

with a determination that Tjie’s testimony, while credible, was

insufficiently detailed and consistent by itself to support his

claims.

Tjie also has failed to show that the IJ’s determination

that he was not entitled to CAT relief was not supported by

substantial evidence. See Zhang, 432 F.3d at 344. The evidence

did not reflect that it was more likely than not that Tjie would

be subjected to torture upon a return to Indonesia. See 8 C.F.R.

§ 208.18(a)(1).

The petition for review is DISMISSED in part and DENIED in

part.