2008 Decisions

Opinions of the United

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Precedential or Non-Precedential: Non-Precedential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NOT PRECEDENTIAL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
 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

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
 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

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.