Tjoo Kiat Ng v. Attorney General USA

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-5193
TJOO KIAT NG,
Petitioner
v.
ATTORNEY GENERAL USA,
Respondent
On Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A95-432-666
(U.S. Immigration Judge: Honorable Charles Honeyman)
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 22, 2007
Before: SCIRICA, Chief Judge, FUENTES and CHAGARES, Circuit Judges
(Filed: March 2, 2007)
OPINION OF THE COURT
SCIRICA, Chief Judge.
Tjoo Kiat Ng petitions for review of the Board of Immigration Appeals’ order
affirming the Immigration Judge’s denial of his application for asylum, withholding of
removal and protection under the Convention Against Torture. For the following reasons,

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One of the robberies was theft of his motorcycle.
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we will dismiss the petition in part for lack of jurisdiction; to the extent we have
jurisdiction, we will deny the petition.
I.
Ng, native and citizen of Indonesia, entered the United States on or about August
5, 1999, on a non-immigrant visitor’s visa. Ng was authorized to remain for a temporary
period not to extend beyond January 29, 2000. But he remained in the United States for
longer than permitted and a removal proceeding was initiated against him.
On April 1, 2002, Ng applied for asylum, withholding of removal and protection
under the Convention Against Torture. Identifying himself as a Christian “Indonesian of
Chinese descent” in his affidavit, Ng stated he had been the victim of two robberies in
Indonesia, in 1992 and 1999,1 that prompted his decision to move to the United States for
greater safety.
On August 17, 2004, the IJ found Ng ineligible for asylum under section 208 of
the Immigration and Nationality Act, 8 U.S.C. § 1158, because of failure to file his
application within one year of the date of his arrival in the United States or to establish
either changed or extraordinary circumstances sufficient to excuse the delay. He also
found Ng ineligible for protection under the Convention Against Torture Act. Ng
appealed to the BIA, which adopted and affirmed the decision of the Immigration Judge,
dismissing the appeal. This petition for review followed.

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II.
We review the decisions of both the IJ and the BIA when, as here, the BIA adopts
the findings of the IJ and discusses the underlying bases for the decision. Chen v.
Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004).
Whether this Court has jurisdiction over an untimely asylum claim is a question of
law, reviewable de novo. See Tarrawally v. Ashcroft, 338 F.3d 180, 184 (3d Cir. 2003).
Whether petitioner has demonstrated past persecution, a well-founded fear of future
persecution, a clear probability of persecution, or that it is more likely than not that he
will be tortured in Indonesia, are factual determinations reviewed under the substantial
evidence standard. See Reynoso-Lopez v. Ashcroft, 369 F.3d 275, 278 (3d Cir. 2004)
(citing Senathirajah v. INS, 157 F.3d 210, 216 (3d Cir. 1998)).
III.
We lack jurisdiction to review the denial of Ng’s untimely asylum claim. Under
the Immigration and Nationality Act, the Attorney General has discretion to grant asylum
to any alien who qualifies as a “refugee.” 8 U.S.C. § 1158(b)(1). Asylum eligibility
depends on proof that an applicant is unable or unwilling to return to his home country
“because of persecution or well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political opinion . . . .” 8 U.S.C. §
1101(a)(42)(A); see also INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). Further, “a
showing of past persecution gives rise to a rebuttable presumption of a well-founded fear
of future persecution.” Mulanga v. Ashcroft, 349 F.3d 123, 132 (3d Cir. 2003) (citing 8

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C.F.R. § 1208.13(b)(1)). The burden of proving persecution is on the asylum applicant.
8 C.F.R. § 1208.13(a); see also Ambartsoumian v. Ashcroft, 388 F.3d 85, 88 (3d Cir.
2004).
But, the alien must demonstrate “by clear and convincing evidence that the
application has been filed within 1 year after the date of the alien’s arrival in the United
States.” 8 U.S.C. § 1158 (a)(2)(B). Notwithstanding the one year limitation, a tardy
application may be considered if the applicant “demonstrates to the satisfaction of the
Attorney General either the existence of changed circumstances which materially affect
the applicant’s eligibility for asylum or extraordinary circumstances relating to the delay
in filing an application within the period specified . . . .” 8 U.S.C. § 1158(a)(2)(D).
Under 8 U.S.C. § 1158(a)(3) we lack jurisdiction to review Ng’s untimely asylum
application. As noted, no court shall have jurisdiction to review any determination of the
Attorney General that an asylum application was not filed within the one year limitations
period and that such period was not tolled by extraordinary circumstances. Sukwanputra
v. Gonzales, 434 F.3d 627, 633–35 (3d Cir. 2006); see also Tarrawally, 338 F.3d at 185.
IV.
Assuming we had jurisdiction, the factual determination about past persecution or
fear of future persecution, as well as credibility determinations, are reviewed under the
substantial evidence standard. Chen v. Gonzales, 434 F.3d 212, 216 (3d Cir. 2005).
These determinations must be upheld “unless any reasonable adjudicator would be
compelled to conclude to the contrary.” Id. (citing 8 U.S.C. § 1252(b)(4)(B)). To support

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an asylum claim, persecution means severe conduct, and “does not encompass all
treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional.”
Li v. Attorney General, 400 F.3d 157, 167 (3d Cir. 2005) (quoting Fatin v. INS, 12 F.3d
1233, 1240 (3d Cir. 1993)).
The record here, particularly Ng’s testimony, does not compel a conclusion
contrary to that reached by the IJ and the BIA. The two robberies that victimized Ng in
Indonesia would not constitute past persecution, nor were they sufficiently “severe” to
justify a finding of past persecution or a well-founded fear of persecution in the future.
Ng’s contention that “many equities . . . weigh in favor of a positive exercise of
discretion” including his “significant period of time in the United States,” his obedience
of the laws, and his good character, does not compel a contrary conclusion.
If Ng could not meet the “eligibility requirements for asylum he could not meet the
more stringent applicable standard for withholding of removal.” Mudric v. Attorney
General, 469 F.3d 94, 102 n.8 (3d Cir. 2006) (citing Janusiak v. INS, 947 F.2d 46, 47 (3d
Cir. 1991)). This would require demonstrating by “a clear probability” that his life or
freedom would be threatened in Indonesia. Li Wu Lin v. INS, 238 F.3d 239, 244 (3d Cir.
2001) (citing Chang v. INS, 119 F.3d 1055, 1066 (3d Cir. 1997)).
Ng was not able to qualify for relief from removal under the Convention Against
Torture because he did not meet the burden of proving that it is “more likely than not”
that he would be tortured in Indonesia. 8 C.F.R. § 208.16(c)(2). The standard for relief
under the Convention on Torture “‘has no subjective component, but instead requires the

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alien to establish, by objective evidence’ that he is entitled to relief.” Sevoian v. Ashcroft,
290 F.3d 166, 175 (3d Cir. 2002) (quoting In re J-E-, 23 I. & N. Dec. 291, 302, 2002 WL
481156 (BIA Mar. 22, 2002) (en banc)).
V.
Accordingly, we will dismiss the petition in part for lack of jurisdiction; to the
extent we have jurisdiction, we will deny the petition.

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