Sumiyati Tjhi v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No: 06-1914
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SUMIYATI TJHI,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
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Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(BIA No. A95-467-674)
Immigration Judge Charles M. Honeyman
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Submitted Under Third Circuit LAR 34.1(a)
September 27, 2007
Before: AMBRO, JORDAN and ROTH, Circuit Judges.
(Filed October 29, 2007)
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OPINION OF THE COURT
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JORDAN, Circuit Judge.
Sumiyati Tjhi petitions for review from the final order of the Board of Immigration
Appeals (“BIA”) denying her claims for asylum, withholding of removal, and protection
under the Convention Against Torture (“CAT”). Tjhi claims that the BIA made several
errors of fact and law. For the reasons that follow, we will deny the petition for review.
I.
Tjhi was born in Jakarta, Indonesia on March 11, 1977, and is ethnically Chinese.
She was baptized into the Catholic Church on December 20, 1998. Tjhi alleges that she
has suffered persecution throughout her life. First, she asserts that in elementary school
native Indonesian classmates pushed her to the ground, threw stones at her, and yelled,
“go back to China, you just live here for temporary, this not your country.” (Joint
Appendix [“JA”] at 16.) She says that in high school she was robbed by students while
on the bus to school. She further alleges that she and her friend were the only Chinese on
the bus, and, not coincidentally, they were the only people robbed. Tjhi claims that, while
she was a University student, native Indonesians grabbed her breasts while she was
waiting at a bus stop. She also says that during the May, 1998 riots in Jakarta she felt
unsafe and was too frightened to attend church. She testified that, about the time of the
riots, while with her mother, she was accosted by a native Indonesian who yelled, “Hi
Chinese[,] are you want being raped.” (JA at 17.) She also testified that shortly
thereafter, again while walking with her mother, she was robbed by a man who was later
apprehended by the police but went unpunished. Tjhi states that all of these events led to

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her departure from Indonesia on May 30, 2001. She arrived in the United States on May
31, 2001 with a temporary visa, and has remained in this country continually since her
arrival. Her parents and sister both remain in Jakarta.
On May 28, 2002, Tjhi filed a petition for asylum on the basis of past persecution
due to her race, religion, and nationality. She appeared on April 23, 2003 for removal
hearings before an Immigration Judge (“IJ”). At that hearing, she conceded removability,
but petitioned for asylum, withholding of removal and protection under the CAT. After a
hearing on Tjhi’s petition, the IJ issued an oral opinion dated December 17, 2004,
denying relief. The IJ found Tjhi credible, but found that even if everything she testified
to was true, she failed to establish either past persecution or a well-founded fear of future
persecution. The IJ went on to state that even if Tjhi had established a subjectively
genuine fear, that fear was not objectively reasonable or supported by the evidence.
Tjhi appealed the IJ’s decision to the BIA on November 23, 2005, claiming that
there was enough evidence in the record to support her well-founded fear of future
persecution. Specifically, Tjhi accused the IJ of making several “clearly erroneous
factual conclusions” about country conditions in Indonesia and the reasonableness of
Tjhi’s fear of future persecution. (JA at 78-79.) Nevertheless, the BIA affirmed the IJ’s
decision on February 14, 2006, finding that Tjhi’s experiences did not “rise to the level of
persecution.” The BIA also relied on Tjhi’s “testimony that her parents and her sister
continue to live without harm in Indonesia, and that her Catholic sister remains able to
attend church, undermines her claim that she has a well-founded fear of persecution if

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1 We will not exercise jurisdiction over Tjhi’s claims for withholding of removal and
protection under the CAT because she “makes no specific argument that the BIA’s denial
of [her] claims for withholding of removal and CAT protection were incorrect. We
therefore deem those claims waived and address only the asylum claim.” Vente v.
Gonzales, 415 F.3d 296, 299 n.3 (3d Cir. 2005), citing Laborers’ Int’l Union of N. Am. V.
Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir. 1994). In addition, while Tjhi lists in the
“Questions Presented” section of her brief the question of whether the BIA misapplied the
law and caused “a Fifth Amendment deprivation to Petitioner” (Petitioner Br. at 5), we
have found in the briefing no other reference to, let alone explication of, how the BIA’s
legal reasoning involves a violation of the Fifth Amendment.
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returned to Indonesia.” (JA at 87-88.) Tjhi filed a motion to reconsider and argued that
the principle of mixed-motive persecution was applicable to her case. The BIA denied
Tjhi’s motion, finding that “where the events recounted by an asylum applicant do not
rise to the level of persecution, the issue of [mixed-motive persecution] is not relevant.”
(JA at 113.)
II.
We have jurisdiction over a petition for review from an order of the BIA under
section 242(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1252(a)(1).1 Lie v.
Ashcroft, 396 F.3d 530, 534 n.3 (3d Cir. 2005).
Where the BIA issues “a decision on the merits and not simply a summary
affirmance, we review the BIA’s, not the IJ’s, decision.” Lie, 396 F.3d at 534 n.3, citing
Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002). We review the BIA’s factual findings
to determine if they are supported by substantial evidence. Id. “The administrative
findings of fact are conclusive unless any reasonable adjudicator would be compelled to
conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).

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We review questions of law de novo. Wang v. Ashcroft, 368 F.3d 347, 349 (3d
Cir. 2004).
III.
Tjhi makes two claims in her appeal. First, she asserts that the BIA overlooked the
motivation behind the acts of crime perpetrated against her, arguing that those acts were
not isolated crimes but in fact constituted a persistent pattern of persecution. Second, she
claims that the BIA ignored or misapplied the law by failing to discuss relevant law, by
considering her family’s circumstances in assessing the objectivity of Tjhi’s fear of future
persecution, and by refusing to remand the case to the IJ for further testimony regarding
her experiences in Indonesia.
To qualify for asylum, a petitioner must show that she is “unable or unwilling to
return to ... [her] country because of persecution or a well-founded fear of persecution on
account of race, religion, nationality, membership in a particular social group, or political
opinion.” 8 U.S.C. §§ 1158(b)(1)(B)(i), 1101(a)(42). To establish a well-founded fear of
persecution, a petitioner “must first demonstrate a subjective fear of persecution through
credible testimony that her fear is genuine. ... Second the applicant must show,
objectively, that ‘a reasonable person in the alien’s circumstances would fear persecution
if returned to the country in question.’” Lie v. Ashcroft, 396 F.3d at 536, quoting Zubeda
v. Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003).
A.

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In her first argument, Tjhi alleges that the BIA failed to consider the motivation of
the criminal acts perpetrated against her, which she claims is sufficient to raise those
crimes to the level of persecution. Specifically, Tjhi claims that there is “ample evidence
that she was singled out for persecution” because of her ethnicity. (Petitioner’s Brief at 9.)
Tjhi substantiates her claims by pointing to the incidents when she was shoved in school,
robbed on a school bus, and groped and harassed on the street.
As upsetting as all these events no doubt were, Tjhi’s argument nevertheless
misses the mark. The BIA denied her claim because the events recounted by Tjhi do not
rise to the level of persecution, regardless of the motives behind them. Persecution has
been defined as “threats to life, confinement, torture, and economic restrictions so severe
that they constitute a threat to life or freedom.” Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.
1993). Applying this definition, substantial evidence supports the conclusion of the BIA
that Tjhi did not establish a well-founded fear of persecution. While it is truly
unfortunate that Tjhi was subjected to the acts alleged, those incidents taken together are
not severe enough to “constitute a threat to life or freedom.” This Court has previously
noted that an “account of isolated criminal acts, perpetrated by unknown assailants, which
resulted only in the theft of some personal property and a minor injury, is not sufficiently
severe to be considered persecution.” Lie v. Ashcroft, 396 F.3d at 536.
Contrary to Tjhi’s assertions, the criminal behavior to which she was subjected
was in fact a group of isolated incidents analogous to those suffered by the petitioner in
Lie. Id. The events Tjhi recites in support of her application were relatively few in

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number and spread over the course of a lifetime, beginning with shoving and jeering in
grade school and culminating in harassment after her time in University. Moreover, Tjhi
did not leave the country until three years after the last acts of persecution alleged in her
petition. While we are not insensitive to the real distress she may have suffered as a
consequence of those events, the BIA’s decision that Tjhi’s allegations do not rise to the
level of persecution is supported by substantial evidence.
Tjhi further contends that the BIA committed an error of law by failing to
appropriately consider the principle of mixed-motive persecution. However, where the
events in question are not sufficiently severe to constitute persecution, we do not apply
the principle of mixed-motive persecution. In Singh v. Gonzales, this court held that it is
sufficient for a petitioner to prove that the persecution he suffered was motivated at least
in part by race, religion, nationality, membership in a particular social group, or political
opinion. 406 F.3d 191, 197-199 (3d Cir. 2005). However, before motivation may be
discussed, the acts at issue must be determined to be persecution. See Ramos-Ortiz v.
Ashcroft, 70 Fed. Appx. 68, 72 (3d Cir. July 9, 2003) (where there is insufficient evidence
to prove persecution there is necessarily insufficient evidence to overturn an IJ’s rejection
of mixed-motive theory). Because Tjhi did not present sufficient evidence to establish
that she was persecuted, the BIA was correct in finding that the principle of mixed-motive
persecution does not apply.
B.

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Tjhi next contends that the BIA committed several errors of law. Tjhi first argues
that the BIA erred by failing to discuss the definition of persecution cited in the REAL ID
Act § 208(b), as codified in 8 U.S.C. § 1158(b). However, 8 U.S.C. § 1158(b) does not
define the term “persecution;” rather it requires that an applicant for asylum first meet the
definition of “refugee” as defined in 8 U.S.C. § 1101(a)(42)(A) (defining a “refugee” as a
person “who is unable or unwilling to return to, and is unable or unwilling to avail
himself or herself of the protection of, [her] country because of persecution or a well-
founded fear of persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion”). See 8 U.S.C. §§ 1158(b)(1)(A),
1158(b)(1)(B)(I). That definition does not undermine the definition of persecution in
Fatin v. INS, upon which the BIA relied. It merely elucidates the definition of “refugee”
provided by 8 U.S.C. § 1101(a)(42)(A). Fatin, 12 F.3d at 1240 (persecution includes
“threats to life, confinement, torture, and economic restrictions so severe that they
constitute a threat to life or freedom”). Therefore, the BIA made no error of law in failing
to discuss 8 U.S.C. §§ 1158(b) and 1101(a)(42)(A).
Tjhi’s second claim of legal error seems to be based on the BIA’s reliance on
evidence that her family remains in Indonesia as undermining the objectivity of her fear
of persecution. As noted earlier, her parents and sister continue to live and work in
Jakarta. Her father operates a concrete block manufacturing company, employing four
workers, and her sister works in an office and practices Catholicism, apparently without
trouble. Tjhi cites Vente v. Gonzales for the proposition that the status of a petitioner’s

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family is “irrelevant to an inquiry into whether his own fear of persecution ... is
subjectively and objectively reasonable.” 415 F.3d 296, 302 (3d Cir. 2005). Vente,
however, is distinguishable. The petitioner in Vente was targeted by a paramilitary
organization for his participation in a specific community group to which his family did
not belong. Id. at 298. Tjhi, on the other hand, claims the crimes against her were
motivated by her ethnicity, which is shared by her family, and her religion, which is
shared by her sister. See Lie, 396 F.3d at 537 (“We agree that when family members
remain in petitioner’s native country without meeting harm, and there is no individualized
showing that petitioner would be singled out for persecution, the reasonableness of a
petitioner’s well-founded fear of future persecution is diminished.”) Therefore, it was not
error for the BIA to consider the circumstances of Tjhi’s family in making its decision.
Finally Tjhi argues that the BIA should have remanded her case to the IJ for
further testimony, alleging that the IJ “made [his] finding without any testimony about
any of the incidents of persecution from Petitioner.” (Petitioner’s Brief at 14.) However,
contrary to Tjhi’s implication, the IJ did not truncate Tjhi’s testimony at her hearing. At
the end of the hearing, the IJ asked both Tjhi’s attorney and the attorney for the
government if they wished to ask any further questions. Only after they both replied in
the negative did he end the testimony and render his oral decision. The IJ therefore did
not take any steps to interfere with the extent or subject matter of Tjhi’s testimony, and
the BIA did not err in refusing to remand the case for further hearings.
Accordingly, we will deny Tjhi’s petition for review.

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