Alvianty Pramudita Tjen v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 05-5190
ALVIANTY PRAMUDITA TJEN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of an Order
of the Board of Immigration Appeals
(No. A79-323-248)
Immigration Judge: Hon. Rosalind K. Malloy
Submitted Under Third Circuit LAR 34.1(a)
October 22, 2007
Before: SLOVITER, CHAGARES, and HARDIMAN, Circuit Judges
(Filed October 30, 2007)
_____
OPINION

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The IJ also denied Tjen’s claim under the Convention1
Against Torture, but Tjen does not pursue that claim on appeal.
2
SLOVITER, Circuit Judge.
Alvianty Pramudita Tjen petitions for review of an order of the Board of
Immigration Appeals (“BIA”) denying her application for asylum and withholding of
removal.
I.
Tjen, a female Indonesian citizen, entered the United States on December 1, 2000
as a non-immigrant visitor, and was authorized to remain in the United States until May
1, 2001. On June 1, 2001, she filed an application for asylum and withholding of
removal, asserting that she had been persecuted in Indonesia due to her Chinese
ethnicity. Tjen, who was born in Indonesia and lived there for over thirty years, lived in
Cengkarang on the island of Jakarta for fifteen years. At the same time, her five siblings
also lived in Jakarta. On September 25, 2001, the government initiated removal
proceedings against her and served her with a Notice to Appear before an Immigration
Judge (“IJ”).
Following the merits hearing on September 3, 2004, the IJ denied Tjen’s
application for asylum and withholding of removal. The IJ found that Tjen was not
credible, and stated that even if she were credible, she had not proven that she had
suffered past persecution or had a well-founded fear of future persecution. On appeal,1

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At the time she applied for asylum, Tjen was2
approximately thirty-one years old.
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the BIA adopted the findings of the IJ and affirmed the IJ’s decision. Tjen has filed a
timely petition for review.
II.
Tjen testified that she applied for asylum because she did “not wish to return” to
Indonesia, stating that “there is no guarantee for safety.” App. at 111. She based her
testimony on three incidents. The first was the alleged theft of medication needed for
her father that Tjen’s maid had purchased from the pharmacy and which was stolen and
discarded by a group of native Indonesians or “Pribumi.” App. at 112. Although Tjen
testified that these particular robbers “frequently came asking for money,” she said that
her family never denied them money and that her family never had a prior conflict with
them. App. at 113. She testified that her father passed away about a week after the
incident, but Tjen admitted that in the affidavit attached to her asylum application, she
had said that her father died the same day the Pribumi stole the medication from the
maid.
Tjen testified that the second incident occurred in 1977 or 1978 in Tangung Priok,
when she was approximately seven years old. On that occasion, she witnessed her2
sister-in-law being beaten to death as she was attempting to prevent the Pribumi from
attacking her store.

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The third incident occurred during the Cengkarang riots and robberies of 1998
against the Chinese. Tjen testified the Pribumi threatened to rape her and that during a
separate incident, in May 1998, her store was burned down by Pribumi and on the next
day “masses” of Pribumi chased her, but she escaped in her car. App. at 122. Tjen
testified that she stayed in her home for two weeks, but stated in the affidavit attached to
her asylum application that she remained at home for “a few days.” App. at 134. After
that incident, Tjen testified that she found a new job in accounting.
The IJ denied Tjen’s applications, stating that she did not believe Tjen’s
testimony about the death of her father, and concluded that Tjen’s “entire story [wa]s
incredible and a fabrication,” because “[t]he inconsistencies were significant, and the
respondent could not explain why these inconsistencies existed.” App. at 61. The IJ also
discredited Tjen’s testimony regarding her family. Tjen had testified that she lost contact
with her family in 2004, but the IJ found that testimony to be incredible because Tjen
had no idea where they went, even though she had been speaking to them once a month
prior to that. Most significantly, the IJ did not believe that Tjen came to the United
States out of fear for her safety, because Tjen changed her answer on that point several
times and did not appear to be genuinely fearful. In short, the IJ found that Tjen’s
testimony did not demonstrate that she had suffered past persecution or would suffer
future persecution on any of the protected grounds, and that therefore, Tjen was
ineligible for the relief requested.

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We have jurisdiction to review final orders of the BIA3
under 8 U.S.C. § 1252(a)(1). When the BIA’s decision
substantially relies upon the decision of the IJ, we have discretion
to consider the IJ’s decision, as well as the BIA’s decision. Xie v.
Ashcroft, 359 F.3d 239, 242 (3d Cir. 2004).
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The BIA dismissed Tjen’s appeal, affirming the IJ’s adverse credibility
determination and concluding that Tjen had not proven past persecution or fear of future
harm.3
III.
Because the BIA adopted the IJ’s adverse credibility determination and discussed
some of the underlying bases for that conclusion, it is appropriate to consider the IJ’s
decision. We review adverse credibility determinations under the substantial evidence
standard.
There is substantial evidence to support the BIA’s decision to affirm the IJ’s
adverse credibility determination. Applying the standard enunciated in our opinion in
Xie v. Ashcroft, 359 F.3d 239 (3d Cir. 2004), we hold that no reasonable adjudicator
would be “compelled to conclude” that the IJ’s determination was incorrect. Id. at 243
(citation and internal quotation marks omitted).
Here, Tjen’s testimony contains several inconsistencies about her father’s death,
about the amount of time she remained in her home following the 1998 riots, and about
the reason she left Indonesia. Those inconsistencies detract from Tjen’s argument that
she genuinely feared and presently fears persecution. Looking at the evidence as a

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whole, no reasonable adjudicator would be compelled to overturn the IJ’s finding that
Tjen’s stated fear of persecution was not credible.
Even if we were to assume that all of Tjen’s testimony was true, she has still not
met the standard for proving past persecution or a well-founded fear of future
persecution. Although there is some evidence that Chinese individuals in Indonesia have
been the targets of isolated criminal incidents, see, e.g., Lie v. Ashcroft, 396 F.3d 530,
535 (3d Cir. 2005), Tjen has not proven that she was persecuted “on account of” her
race, religion, nationality, membership in a particular social group, or political opinion.
See 8 U.S.C. § 1101(a)(42)(A); Lie, 396 F.3d at 535. In Lie, the petitioner proved that
her attackers had used ethnic slurs and that, although not directed at her, there had been
some ethnic tension in the area in which she lived. We held that general ethnic
difficulties in a region, in combination with the use of an ethnic slur, “would not compel
a reasonable factfinder to conclude” that the attacks were “on account of” the
petitioner’s ethnicity. Lie, 396 F.3d at 535.
Here, there is even less evidence of ethnic or religious motivation than in Lie.
Although Tjen testified that the thieves who took her father’s medication knew her
family, there is no evidence that the attack was on account of her ethnicity. Similarly,
although the incidents in the late 1970s and in 1998 indicate general ethnic difficulties, it
is not enough to prove that the specific incidents about which Tjen testified were
motivated by ethnicity or religion. See Lie, 396 F.3d at 535-36.

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In addition, the incidents Tjen describes are not sufficiently severe to constitute
“persecution” under our precedents. Isolated criminal acts, although they may be
unfortunate, do not meet that standard. Tjen has described three isolated criminal acts,
separated by over twenty years. Moreover, two of the acts were directed to her family
members, not to her. Those acts, though no doubt troubling, are not sufficiently severe
to meet the definition of “persecution.” See id. at 536.
Tjen has also not established a well-founded fear of future persecution. “To
establish a well-founded fear of future persecution an applicant must first demonstrate a
subjective fear of persecution through credible testimony that her fear is genuine,” and
“must show, objectively, that a reasonable person in the alien’s circumstances would fear
persecution if returned to the country in question.” Id. (citation and internal quotation
marks omitted).
Tjen has not met either prong. The IJ determined, and the BIA affirmed, that
Tjen’s fear was not genuine. We have no reason to overturn that credibility
determination. In addition, although there is some evidence regarding general conditions
of ethnic persecution in Indonesia, it does not rise to the level of a pattern or practice.
See Lie, 396 F.3d at 537; see also Konan v. Attorney General, 432 F.3d 497, 506 (3d Cir.
2005).
Finally, Tjen’s withholding of removal claim also fails. We have explained that
“if an alien fails to establish the well-founded fear of persecution required for a grant of

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asylum, he or she will, by definition, have failed to establish the clear probability of
persecution required for withholding of deportation.” Zubeda v. Ashcroft, 333 F.3d 463,
469-70 (3d Cir. 2003).
IV.
For the above-stated reasons, we will affirm the decision of the BIA and deny
Tjen’s petition for asylum and withholding of removal.

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