2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit 6-16-2004 

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w . v i l l a no va . e du/thir dc ir c uit_2004/595NOT PRE CEDENT IAL

UN ITED STA TES CO UR T O F A PPE AL S FO R T HE TH IRD CIR CU IT

No. 03-1322

LOI HIN T JONG,

Petitioner

v. JOHN AS HCROFT , A TTORNE Y GENERAL OF THE UNIT ED STA TES OFAMERI CA, Respondent

Petition for Revi ew of an Order of the Bo ard o f Imm igration Ap peals

(A78-687-359)
Submitte d Under Third Circ uit LAR 34.1(a)

March 8, 2004 Be for e: S LO VI TE R, N YG AA RD , Circu it Judges and OB ER DO RF ER , Distri ct Judge * (Fil ed: June 16, 2004)

OPINI ON OF THE COURT

* Hon. Louis F. Oberdorfer, United State s District Court for the Dis tri ct of Columbia, s itting by designation.2

SL OV ITE R, Circu it Judge
. Loi Hin Tjong (“Petiti oner”), a citizen of I ndonesia, has fil ed a Peti tion for Review of the Ord er of th e Bo ard o f Imm igration Ap peals ( “BIA ”) den ying his m otion to reconsi der it s prior

final order of r emoval. I n the underl yi ng decisi on, the BIA affirmed th e de ci si on o f the I mmig ra ti on J udg e ( “I J” ) d eny in g Tj ong ’s petitio ns f oras y lu m, withholdi ng of removal under the Immigr ation and National ity Act (“INA”), and withholdi ng of removal under the Unite d Nations Conventi on Against Tort ure and Other Cruel, Inhuman or Degrading Tr eatment or Punishment ( “CAT”). We will deny the Pet it io n f orRev ie w. I. Bec ause the pa rties are f amiliar with the fa ctual a nd p roced ural ba ckgr oun d of this case, we re fer only

to thos e facts that are pertinent to the is sues under c onsider ation. Tjong arri ved in the United States in 1995 as a non-immigr ant vis itor and overst ayed hi s touri st vi sa. Based on al legations of per secuti on as a Chris tian and an ethnic ally

Chinese ci tize n of Indonesi a, Tjong appl ied for a sylum and withholdi ng of

remo val unde r the I NA on Jul y 1 0, 2 000, and t hen appl ie d for

pro te ct ion unde r the CAT. The Imm igration and N aturaliza tion S ervice (“IN S”) c harg ed T jong as rem ovab le on A ugu st 29, 2 000 and c om men ced a remo val he aring o n O ctobe r 18, 2 001 . Du ring h is hearing, Tjong test

ifie d that, when he was in Indonesi a he was “beaten up and [ ] robbed a lot” by ethnic Indonesi ans, often with knive s, between three t o four ti mes a year. App. at3

4, 8. Tj ong te stif

ie d tha t, on o ne oc ca si on, he was ro bbe d a t kni fe poi ntin an al le y . O n another oc casion, he was robbed at kni fepoint on a bus and then ki cked and beate n; the police came and took names but did nothi ng more. Also, Tjong test ifie d that he had problems at

school wit

h both the s tudents and teacher s and was often beaten up and kicke d at sch ool. When asked to describe his worst experience as an ethni c Chinese, Tjong descri bed an inci dent in 1989 or 1990 when he trie d to help a lit tle boy who had fallen off a bicy cle and “doze ns” of Indones ians chas ed him because t hey t hought Tjong had run the boy over on his bi ke. App. at

8. Tjong r eported t

hat a l arge group of I ndonesians then threw rocks at his mother’s house. Tjon g also claim ed tha t, becau se he wa s a C hristian in a pred om inantly M uslim

coun try, Mus lims so metim es w ould chas e him en ro ute to c hurc h and , in one instanc e, his assai lants chased him i nto a churc h and began thr owing rocks at the churc h and destro ying cars in the c hurc h par king lot. Tjon g stated that “C hristian C hines e in Indo nesia a re no t free to go to chur ch or to cele brate C hristm as” b ecau se M uslim s wo uld riot around Chris tmas almost everyyear . App. at

10-11. Tjong claimed that several of his fri ends and relatives have had problems because of thei r ethni city

and reli gious bel iefs. For example, the house of hi s sis ter ( also a Chi ne se Chris ti an ) wa s b ur ne d do wn, an d a Chi ne se sc hoo l f ri en d wa s s tabbe d. He described his family ’s accounts of the 1998 riots in Indonesia, in which many Chinese4

hou ses an d store s we re bu rned dow n. A t the clo se of the he aring, T jong stated th at he d id not fe el safe in Ind ones ia and he fe ars be ing ro bbed and b eaten on ac coun t of his ethnic ity and r eligiou s belief s. Tjon g asse rted tha t if he re turned to Ind ones ia, he m ight be put in jail and beate n by the g over nm ent be caus e the g over nm ent kn ew that he had p reviou sly protes ted poor pol ice t

reatment of Chinese. At the cl ose of the he aring, the IJ stated that he had “seri ous concerns ” about the forthrightnes s of some of Tjong’s testimony and t hat “those doubts . . . i mpair[ed Tjon g’s] cre dibility”; how ever, th e IJ ultim ately cou ld no t “justify an adve rse cre dibility finding” with res pect t o the core of Tjong’s cl aim and his “ scattered” i nstances of mis treat me nt. A pp. a t 34 -35
. Nonetheless , the IJ deni ed all forms of rel ief. Because Tjong fai led to apply for asylum w ithin on e year af ter arrivin g in the Un ited Sta tes as re quired und er the s tatute and, further, failed to d emon strate “chang ed circum stances” or “e xtraordinary ci rc ums ta nce s” to exc use hi s un ti mel in es s, th e I J de ni ed Tj ong ’s app li cat io n fo r a sy lu m. As for Tjong’s c laim for withholdi ng of removal, the IJfound that the ins tances i n which Tjong was mistreated i nvolved case s of mixed moti ves, where hi s assai lants had crimi nal inten tion s (i.e., r obb ery) an d so me deg ree o f an ti-C hin ese sen time nt. See, e. g. , App. at 4- 5 (Tjong expl aining t

hat Indones ians r obbed him “because t hey nee d[ed] money , and also theydon’t l ike the Chinese”) ( emphasis added) . The IJ conc luded that Tjong’s inst ances of mistreatment, though regr ettable and unfortunate , were not i n their cumulati ve effect1 Although Tjong’s motion was enti tled a motion for “ the second appeal of the court’ s denialof asy lum,” AR 12, the BIA treated this moti on as a motion f or reco nsid erati on a nd T jon g’s a ppe llate b riefrefe rs to i t as a mo tion for reco nsid erati on. Ap p. at 4 3. 5 “suffici ently

invidi ous or perva sive as
. . . to ri se to t he levelof past per secuti on” based on C hinese ethn icity and/or Christianity. App. at 39. Ac cordingly, the IJ denied T jong’s appl ic at ion s fo r wi thh old ing of r emova l un derthe INA and t he CAT. The BIA affirmed the I J’s deci sion without an opini on on August 12, 2002. Tjong sought t o overturn the IJ ’s deci sion, but the BIA deni ed his moti on for recons iderat ion 1 on January6, 2003, c iti ng Tjong’s fai lure to state the IJ ’s speci fic errors of fa ct or l aw as requir ed under 8 C.F. R. § 3.1(d) (2)(i )(G). Tj ong file d this Petition for Revi ew on February4, 2003. II. The IJ fou nd th at Tjo ng’s a sylum cla im w as time -barre d bec ause Tjon g faile d to apply fo r asylum with in on e year of arrival a nd f urther , Tjon g faile d to d emo nstrate “chang ed circum stances” or “e xtraordinary circumstan ces” to exc use his untim eliness. In light of 8 U .S.C. § 115 8(a)(3 ), wh ich pro vides that “[ n]o c ourt sh all hav e jurisd iction to review anydetermi nation by the Attorney General ” relating to the ti meliness of an asy lum applic ation, we lack jurisdi ction to review the IJ’s conclusi on that Tj ong’s asy lum app licatio n w as u ntim ely. See Tarrawall y v. Ashcroft , 338 F.3d 180, 185 (3d Cir. 200 3). Tjong’s Petiti on for Review als o appeals t he BIA’s order de nyi ng reconsi derati on of his claim for withholding of removal. This court reviews the BIA’s decision for abuse2 Tjong did not appeal the IJ’s finding t hat he was not e ligible for wit hholding of remo val unde r the CAT. 6 of d iscre tion , Noc on v . I NS , 789 F .2d 10 28, 10 29 (3 d C ir. 1986 ), and w e w ill overtu rn its decisi on only if it

is “ar bitr ary , ir

rati onal or cont

raryto law. ” Ti pu v . I NS , 20 F.3d 580, 582 (3d Cir. 1994) (quot ations and cit ations omitt ed). The I J’s determination that Tjong is not en ti tl ed to wit

hho ld in g of

re mov al und erth e I NA 2 may be re versed onl y i f “a reasonabl e factfi nder would have t o conclude that the requis ite f ear of pers ecuti on exist ed.” INS v. Elia s-Zachari as , 502 U .S. 478, 481 (1992). The Go vern men t conte nds th at the B IA p rope rly denied Tjon g’s m otion to reconsider b ecause h e failed to “state the erro rs of fact or law in the prior Bo ard decisi on.” App. at

43. One of the gr ounds on which the Government rest s is t he pro ced ura l def ect a ppa ren t fro m th e rec ord in th is ca se, w hich we belie ve is disp ositiv e. 

### The BIA affirmed the IJ’s deportati on order on August 12, 200 2, and it became a final and a

ppealable order on t

hat day . Tjong filed a

“Brief in Support of the Second Appeal of the Court’s Denial of Asylum ” on August 28, 2002, wh ich the Board construed as a m

otion for reconsider

ation and de

nied on Janua

ry 6, 2003. The pet

ition for review with the Co urt of Ap peals was filed o n February 4, 200 3, which is timely as to the January

Order but, as noted above, untimely as to the August Order. The BIA’s O rder dated Jan uary 6, 2003 den ying reconsideration sta tes: The respondent’s motion is denied for failure to m eet essentia

l statutory or regulatory requirements. See 8 C.F.R. § 3 .1(d)(2)(i)(G ). A motion t

o reconsi der shall stat

e the er rors of fact or law in the3 Even assuming that Tjong’s motion for reconsider ation met the proce dural requir ements, we find that the IJ ’s concl usion that Tjong was not the vic tim of persecution is substant

iall y suppor

ted bythe rec ord. 

### prior Board decision and shall be supp orted by pertinent au thority. In his motion, th e responde nt provid es only generalized assertion s. He fails to allege with any specificity

what errors of fact or law were made by the Board. Accordingl

y,the mot

ion is denied. AR 2. Tj ong doe s n otad dr es s the pr oc ed ur al de fe ct s n ot ed byth e BI A, an d we deny t he peti tion for

review on that ground. 3 Fo r the reas ons set f orth abo ve, w e w ill de ny the Pet ition for Re view
.