Tjandra v. Atty Gen USA ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
3-24-2004
Tjandra v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-4171
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
____________
02-4171
____________
KARTINI TJANDRA,
Petitioner
v.
John Ashcroft, ATTORNEY
GENERAL OF UNITED
STATES OF AMERICA,
Respondent
___________
Petition for Review of an Order
Of the Board of Immigration Appeals
(A76-118-563)
___________
Submitted Under Third Circuit LAR 34.1(a) (1993)
December 2, 2003
Before: SLOVITER, ALITO and FRIEDMAN,* Circuit Judges
(Filed: March 22, 2004)
OPINION OF THE COURT
FRIEDMAN, Circuit Judge.
This petition for review challenges the Board of Immigration Appeals’ (“Board”)
affirmance of an immigration judge’s rejection of a deportable alien’s claim for asylum,
restriction on removal, and relief under the Convention Against Torture. We deny the
petition.
*
Daniel M. Friedman, United States Senior Circuit Judge for the Federal Circuit, sitting by designation.
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I
The petitioner Kartini Tjandra, an Indonesian citizen of Chinese extraction, legally
entered the United States as a visitor but overstayed her permissible residence. When the
government sought to remove her, she admitted deportability but sought asylum based on
fear of persecution if she were returned to Indonesia. At a hearing before an immigration
judge, she based her claims upon three different events:
1. In 1990, 1991, and 1998 while traveling in a vehicle that functioned as a
taxicab in Jakarta, the capital of Indonesia where she lived, she was robbed at
knifepoint by an Indonesian while the vehicle was stopped for traffic, and the
driver of the vehicle did nothing to aid her.
2. In 1998 the driver of a taxicab in which she was traveling attempted to rape her.
She was saved when two men of Chinese extraction came to her aid. She testified
that the driver told her that he hated Chinese people.
3. Between May 13 and 15, 1998, there were serious riots in Jakarta in w hich
Muslims attacked the Chinese. In those riots many shops and houses of Chinese
people were destroyed, including the store of her husband, which was burned
down.
In a lengthy oral opinion, the immigration judge found that Ms. Tjandra “ha[d] not
established a well-founded fear of persecution if she [was] returned to Indonesia” and
denied her asylum. The immigration judge found that the three robberies were “street
crimes” and that since the Chinese had most of the money in Indonesia, it was not
surprising that robberies were directed against them. The attempted rape, the court found,
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was just opportunistic. With respect to the 1998 riots directed against the Chinese, the
immigration judge noted that State Department reports on Indonesia, which were in the
record, stated that after the riots the Indonesian government endeavored to improve the
situation there, which has become less repressive.
A single member of the Board affirmed the immigration judge’s decision without
opinion.
II
To qualify as a “refugee” who may receive asylum, an alien must establish that he
or she is unable or unwilling to return to his or her country of nationality “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.” INS v. Elias-Zacarias, 502
U.S. 478, 481 (1992); Chang v. INS, 119 F.3d 1055, 1059 (3d Cir. 1997) (quoting 8
U.S.C. § 1101(a)(42)(A) (1988 & Supp. 1992)). The concept of “persecution” involves
either government involvement or the involvement of individuals the government is
“unable or unwilling” to control. Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002).
When the Board affirms the administrative judge’s decision without opinion, we
review the administrative judge’s decision. See 8 C.F.R. § 1003.1(e)(4) (2003). See also
Fajardo v. INS, 300 F.3d 1018, 1019 n.1 (9th Cir. 2002) (“The BIA summarily affirmed
the IJ’s order, which therefore constitutes the final agency decision under review.”). Our
review of the administrative judge’s findings, like our review of those of the Board, is
limited: “the [Board’s] finding must be upheld unless the evidence not only supports a
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contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.
2001) (citing Elias-Zacarias, 502 U.S. at 481 & n.1).
The evaluation of the evidence and the inferences to be drawn from it are for the
immigration judge, not the reviewing court. Although Ms. Tjandra contends that the
evidence she presented showed that she had a reasonable fear of persecution, the
administrative judge found to the contrary, and substantial evidence supports that
conclusion. Ms. Tjandra’s arguments basically ask us to substitute our judgment for that
of the immigration judge on the weight to be given the various items of evidence. That is
something we cannot do. The decision of the Board is affirmed.
III
Ms. Tjandra also challenges the action of the Board in affirming the immigration
judge’s decision by the order of a single member without opinion. She contends that such
action did not constitute an adequate or proper review of the case. In Dia v. Ashcroft, 353
F.3d 228 (3d Cir. 2003), this court en banc recently upheld the streamlined Board
procedure. That opinion supports the Board’s procedure in this case.
The petition for review is denied.
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