Mey Tjien Tio; Mey Kwan v. Attorney General USA

Honorable Paul R. Michel, Chief Judge, United States Court of Appeals for the*
Federal Circuit, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-4607
MEY TJIEN TIO; MEY KWAN,
Petitioners
v.
ATTORNEY GENERAL USA,
Respondent
On Petition for Review of a Final Order
of the Board of Immigration Appeals
Immigration Judge: Honorable Charles M. Honeyman
(Nos. A79-310-945 / A79-311-063)
Submitted Under Third Circuit LAR 34.1(a)
April 15, 2008
Before: AMBRO, FISHER, and MICHEL, Circuit Judges*
(filed: April 21, 2008)
OPINION
AMBRO, Circuit Judge
Mey Tjien and Mey Kwan Tio, two sisters, petition for review of a final order of

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the Board of Immigration Appeals that affirmed their removal to Indonesia. We have
jurisdiction over the petition under 8 U.S.C. § 1252(a). For the reasons explained below,
we deny the petition.
The Tio sisters are ethnically Chinese Christians who are Indonesian citizens. In
Indonesia, they faced hostile conduct on the basis of their ethnicity and religion, including
incidents of oral, physical, and sexual harassment. The sisters entered the United States
on April 11, 2000 on visitors’ visas, which they subsequently overstayed. Intending to
apply for asylum, the sisters sought the assistance of a non-attorney preparer in February
2001. While the preparer assured the Tio sisters that she would file their asylum
applications within one year of the sisters’ arrival in the United States, as is required by
statute, she did not file their asylum applications until July 2001.
At a hearing on their applications, the IJ excused their untimely filing and granted
the sisters asylum. The Government appealed, and the BIA reversed the IJ, holding that
the sisters did not meet the criteria for excusing untimely applications on the basis of
“extraordinary circumstances.” The BIA also concluded that the sisters had not shown a
well-founded fear of persecution capable of sustaining an application for asylum, nor
could they satisfy the higher threshold required for withholding of removal. The BIA
remanded to the IJ for consideration of the Tios’ remaining claims for Convention
Against Torture relief and voluntary departure. On remand, the sisters withdrew their
CAT claim. The IJ determined that he was bound by the BIA’s holdings to deny their
claims for asylum and withholding of removal, but he did grant voluntary departure. The

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sisters appealed to the BIA, which dismissed the appeal. They then moved for
reconsideration of the BIA’s order, whereupon the BIA considered their claim for a third
time. On reconsideration, the BIA vacated its previous decision dismissing the appeal
and instead affirmed the IJ’s findings that the sisters were not eligible for asylum or
withholding of removal.
The sisters filed a timely petition for review before our Court. They contend that
their due process rights were violated by the ineffective assistance of the non-attorney
preparer. They further contend that they have demonstrated a well-founded fear of
persecution and that the BIA’s conclusion otherwise was not supported by substantial
evidence.
We need not consider the sisters’ due process claim stemming from their
preparer’s failure to file a timely asylum application because the BIA nevertheless
considered and denied the asylum claim on the merits. Specifically, the BIA held that the
sisters had not established a well-founded fear of future persecution, and, as such, could
not receive asylum. Because the BIA considered the asylum claim on the merits, the
sisters faced no prejudice by their preparer’s failure to file their applications in a timely
manner. We thus turn to the merits of the asylum claim.
To establish eligibility for asylum, an applicant must show by a reasonable
likelihood either that she experienced past persecution or has a well-founded fear of
future persecution. 8 U.S.C. § 1101(a)(42)(A) & § 1158(b)(1)(A). Here, there is no
dispute that the sisters had not experienced harm rising to the level of past persecution,

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The BIA determined that the sisters had not established an individualized risk of1
persecution if they returned to Indonesia. They do not challenge this determination in
their petition for review, and we will not consider it here.
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and thus we only need to review the BIA’s determination concerning future persecution.
To establish a well-founded fear of future persecution, the applicant must first
“demonstrate a subjective fear of persecution through credible testimony that her fear is
genuine.” Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir. 2005). Then, she must make the
objective showing that “‘a reasonable person in the alien’s circumstances would fear
persecution if returned to the country in question.’” Id. (quoting Zubeda v. Ashcroft, 333
F.3d 463, 469 (3d Cir. 2003)). To satisfy the objective prong, the applicant can show
either that she would be individually singled out for persecution or demonstrate that there
is a “pattern or practice” of persecution against persons similarly situated to the petitioner
with regard to the protected ground. 8 C.F.R. § 208.13(b)(2)(iii)(A).1
We review the agency’s determination of whether an applicant has demonstrated a
well-founded fear of future persecution for substantial evidence. Gao v. Ashcroft, 299
F.3d 266, 272 (3d Cir. 2002). Under this standard, we will uphold the agency’s findings
of fact if they are “‘supported by reasonable, substantial, and probative evidence on the
record considered as a whole.’” Id. (quoting Abdille v. Ashcroft, 242 F.3d 477, 483 (3d
Cir. 2001)).
The BIA determined that the sisters could not satisfy the “objective” prong of the
asylum analysis because the record did not reflect a “pattern or practice” of persecution
against Chinese Christians living in Indonesia. After an independent review of the

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record, including the State Department country reports, we hold that substantial evidence
supports this determination. Cf. Lie, 396 F.3d at 537. Accordingly, we deny the petition
for review.

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