Salam Tinah v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 06-4518
__________
SALAM TINAH,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A96-257-839)
Immigration Judge: Donald Ferlise
Submitted under Third Circuit LAR 34.1(a)
on January 18, 2008
Before: SCIRICA, Chief Judge, BARRY and ROTH, Circuit Judges
(Opinion filed: May 6, 2008)
OPINION

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It is unclear whether Tinah is also appealing the denial of asylum based on his failure to1
file for asylum within one year of arriving in the United States. In any event, we have no
jurisdiction to review such an appeal, as the Attorney General has determined that his asylum
application was not timely. 8 U.S.C. § 1158 (a)(3).
2
ROTH, Circuit Judge:
Salam Tinah seeks review of a final order of the Board of Immigration Appeals (BIA)
affirming the decision of an Immigration Judge (IJ) ordering Tinah removed from the United
States and denying his application for withholding of removal and protection under the
Convention Against Torture. Tinah now argues that the IJ failed to properly apply the law
when he determined that Tinah had not shown that he was more likely than not to face
persecution or torture as a result of his deportation. Finding no error, we will affirm.1
I. BACKGROUND
Tinah argues that he was subject to persecution in the past in Indonesia, and that he
would also be subject to persecution in the future if he were to return. Tinah is a native and
citizen of Indonesia; he is also an ethnic Chinese and a Buddhist. In his testimony, which the
IJ found to be credible, he set forth two examples of alleged persecution that he suffered
because of his ethnicity and religion.
In 1978, Tinah’s father was arrested after a public restroom near his place of business
was set on fire. It is not clear whether he was ever charged with a crime, but in any event he
was held in prison for six months. The other incident occurred in 1999 when Tinah’s in-laws
asked him for money. After he refused, they prevailed upon his wife to seek a divorce, which
she did.

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Tinah entered the United States on or about April 17, 2001, as a non-immigrant visitor
for pleasure and was authorized to remain in the United States through October 16, 2001.
On March 7, 2003, the former Immigration and Naturalization Service commenced removal
proceedings against Tinah, charging that he was removable as an alien who, after admission
as a non-immigrant, has remained in the United States for a time longer than permitted. On
February 16, 2003, Tinah filed an application for asylum and for withholding of removal
based on the danger of future persecution and torture. Tinah acknowledged at his hearing
that his asylum application was not timely.
Following a hearing on the merits of Tinah’s application, the IJ issued an oral decision
on May 10, 2005, denying his petition. Tinah appealed the decision to the BIA. In an order
issued on September 20, 2006, the BIA adopted and affirmed the IJ’s decision and dismissed
Tinah’s appeal. Tinah then filed the instant petition for review of his application for
withholding of removal with this Court.
We have exclusive jurisdiction to review final orders of removal pursuant to INA
Section 242(a)(1). 8 U.S.C. § 1252(a)(1) (2005), as amended by The REAL ID Act of 2005,
§ 106, Pub. L. No. 109-131, Div. B, 119 Stat. Tinah’s petition for review was timely filed
and venue is proper because the proceedings before the IJ were concluded in Philadelphia,
Pennsylvania.
Where, as here, the Board summarily affirms and adopts the IJ’s decision, this Court
reviews the decision of the IJ. Tarrawally v. Ashcroft, 338 F.3d 180, 184 (3d Cir. 2003).

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4
Our review of the application of legal principles to undisputed facts is de novo. Sun Wen
Chen v. U.S. Att’y Gen., 491 F.3d 100, 109 (3d Cir. 2007).
II. DISCUSSION
A. Withholding
To qualify for withholding of deportation, Tinah must show that it is more likely than
not that he will suffer persecution on account of a protected ground (race, religion,
nationality, membership in a particular social group, or political opinion) if he is deported.
See 8 U.S.C. § 1231(b)(3)(A); INS v. Stevic, 467 U.S. 407, 422 (1984). One way that he may
meet this burden is by showing past persecution, which raises a rebuttable presumption of
future persecution. See 8 C.F.R. §§ 208.16(b)(1). We have defined persecution as “threats
to life, confinement, torture, and economic restrictions so severe that they constitute a threat
to life or freedom.” Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir. 2005) (quoting Fatin v. INS,
12 F.3d 1233, 1240 (3d Cir. 1993)).
The IJ applied this standard correctly in finding that the acts narrated by Tinah in his
testimony simply do not rise to the level of persecution. The arrest of a relation, apparently
on suspicion of having committed a crime, does not meet the standard for persecution.
Extortionate behavior by in-laws, however reprehensible, also fails to rise to the level of
persecution. Accordingly, we find that Tinah has not been subjected to past acts of
persecution that would give rise to a presumption of future persecution.

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Tinah does not present any other specific evidence that he faces future persecution but
argues that he faces persecution based on a general pattern of persecution against ethnic
Chinese Buddhists in Indonesia. In order to establish a pattern of persecution, Tinah must
show that the persecution of the group is “systemic, pervasive, or organized.” Lie v. Ashcroft,
396 F.3d 530, 537 (3rd Cir. 2005). In addition, as with any claim of persecution, violence or
other harm perpetrated against the petitioner's group does not constitute persecution unless
such acts are committed by the government or forces the government is either “unable or
unwilling to control.” Id.
The evidence on the record shows that anti-Chinese and anti-Buddhist sentiments exist
in Indonesia, and that at least some acts of violence were committed against Chinese
Buddhists as recently as 2000. However, the State Department 2004 Country Report on
Indonesia states that the Indonesian government officially promotes religious tolerance, and
that anti-Chinese incidents have declined compared to recent years. Any violence that
continues to take place seems to be primarily committed by fellow citizens and not as the
result of governmental action or acquiescence. Accordingly, we are not compelled to find
that such attacks constitute a pattern or practice of persecution against Chinese Buddhists.
B. Convention Against Torture
Withholding under the Convention Against Torture requires that the applicant
“establish that it is more likely than not that he or she would be tortured if removed to the
proposed country of removal.” See 8 C.F.R. § 208.16(c)(2). While Tinah mentions the

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Convention Against Torture, he does not provide any specific evidence showing that he faces
torture if he returns to Indonesia. He cannot carry his burden by relying on general
allegations about Indonesia. See Lie, 396 F.3d at 537-38. Accordingly, we find that he has
failed to carry his burden under the Convention Against Torture.
III. CONCLUSION
For the foregoing reasons, we will deny the petition for review.

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