Tjhi v. Atty Gen USA , 284 F. App'x 863 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
7-3-2008
Tjhi v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-3570
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-3570
___________
MIAU KIAN TJHI
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of Removal of the Board of Immigration Appeals
Agency No. A96-203-452
Immigration Judge: R.K. Malloy
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
JULY 2, 2008
Before: FUENTES, ALDISERT AND GARTH, Circuit Judges
(filed: July 3, 2008)
_________
OPINION
_________
PER CURIAM
Miau Kian Tjhi, a native and citizen of Indonesia, seeks review of a final order of
removal. For the reasons that follow, we will deny the petition for review.
Tjhi entered the United States on June 13, 2001, at Los Angeles, California. The
government issued a Notice to Appear on April 17, 2003, and Tjhi filed his application
for asylum, withholding of removal, protection under the Convention Against Torture
(“CAT”), and voluntary departure on March 9, 2004. The Immigration Judge (“IJ”) held
a hearing on November 10, 2005. Tjhi testified that he is an ethnic Chinese and a
Buddhist. In 1996, rioters burned down his parents’ store. Tjhi presented photographs of
the resulting damage. After the riots, Tjhi moved to Taiwan on the advice of his parents.
In 1998, while he was living in Taiwan, anti-Chinese rioters destroyed his brother’s store.
Tjhi remained in Taiwan until 2000 and returned to Indonesia only because he lacked
legal status in Taiwan. Tjhi admitted that he suffered no serious injury or harm as a result
of the two riots. Nonetheless, he testified that he fears he will be persecuted if he returns
to Indonesia.
The IJ determined that Tjhi had not carried his burden of proof for withholding of
removal or for relief under CAT, but granted his application for voluntary departure. The
BIA affirmed.1
To qualify for withholding of removal, a petitioner must establish that it is more
1
With respect to Tjhi’s claim for asylum, the IJ determined that Tjhi had failed to meet
his burden of showing by clear and convincing evidence that he had applied for asylum
within one year of his arrival, and that Tjhi had not alleged circumstances that would
render him eligible for a waiver of the one-year filing deadline. 8 U.S.C. § 1158(a)(2)(B),
(D). Tjhi has not raised this issue on appeal. In any event, we lack jurisdiction to review
an IJ’s determination that an applicant failed to file his asylum application within one
year of arrival, or an IJ’s discretionary decision that there are no changed or extraordinary
circumstances that warrant consideration of the application. 8 U.S.C. § 1158(a)(3); Kaita
v. Att’y Gen., 522 F.3d 288, 296 (3d Cir. 2008); Sun Wen Chen v. Att’y Gen., 491 F.3d
100, 105 (3d Cir. 2007).
2
likely than not that his life or freedom would be threatened due to a protected category if
returned to his country. Kaita v. Att’y Gen., 522 F.3d 288, 296 (3d Cir. 2008). Tjhi has
not established any likelihood, let alone a “clear probability,” that he will suffer any
injury based on his Chinese ethnicity or his Buddhist religion.2 Id. He has proffered no
evidence to indicate that future riots are more likely than not, nor has he established a
clear probability that he would be targeted or harmed should riots occur. Similarly, Tjhi
failed to establish that, more likely than not, he would be tortured if he returns to
Indonesia. To the extent Tjhi seeks a stay of removal or voluntary departure, his motion
is denied.3
For the foregoing reasons, the petition for review is denied.
2
It bears mention that counsel submitted a brief arguing at length that Chinese
Christians are persecuted by Muslim Indonesians, an issue wholly irrelevant to this
petition for review, particularly since Tjhi is not a Christian, but a Buddhist. It behooves
counsel to strive to provide competent representation to his clients, many of whom make
great sacrifices to pay his fees.
3
Although Tjhi’s brief refers to a motion for a stay of removal, no such motion was
received by the Court.
3