Tjie v. Gonzales ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 12, 2006
Charles R. Fulbruge III
Clerk
No. 05-60795
Summary Calendar
RIO FOLKLAND CITRA TJIE
Petitioner
v.
ALBERTO R GONZALES, US ATTORNEY GENERAL
Respondent
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Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A96 290 387
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Before KING, WIENER and DeMOSS, Circuit Judges.
PER CURIAM:*
Rio Folkland Citra Tjie, a native and citizen of Indonesia
who is an ethnic Chinese and a Roman Catholic, petitions for
review of the order of the Board of Immigration Appeals (BIA)
dismissing his appeal of the decision of the immigration judge
(IJ). The IJ rejected Tjie’s application for asylum as untimely
and denied his applications for withholding of removal and for
relief under the Convention Against Torture (CAT).
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 05-60795
-2-
We lack jurisdiction to review Tjie’s challenge to the IJ’s
rejection of his asylum application as time-barred. See 8 U.S.C.
§§ 1158(a)(2)(B), (a)(2)(D), (a)(3); see also Sokolov v.
Gonzales, 442 F.3d 566, 568-69 (7th Cir. 2006). Although the
REAL ID Act retroactively restored this court’s jurisdiction to
review constitutional claims and questions of law regarding final
orders of removal in many circumstances where such review
otherwise would be barred, the determination whether a “change in
circumstances” or “extraordinary circumstances” justified Tjie’s
failure to file his asylum application in a timely manner does
not involve such a constitutional claim or legal question.
We will uphold the finding that an alien is not eligible for
withholding of removal or relief under the CAT if that finding is
supported by substantial evidence. Zhang v. Gonzales, 432 F.3d
339, 344 (5th Cir. 2005). When the BIA has summarily affirmed
the IJ’s decision, as here, we review the IJ’s decision. See
Majd v. Gonzales, 446 F.3d 590, 594 (5th Cir. 2006). The
substantial evidence standard requires that the agency decision
be based on the record evidence and that the decision be
substantially reasonable. Carbajal-Gonzalez v. INS, 78 F.3d 194,
197 (5th Cir. 1996). Under this standard, the IJ’s determination
will be affirmed unless the “evidence compels a contrary
conclusion.” Id.
Tjie has not established that the evidence compels a
conclusion that it is “more likely than not” that he will be
No. 05-60795
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persecuted if returned to Indonesia. See Roy v. Ashcroft, 389
F.3d 132, 138-39 (5th Cir. 2004); Zhang, 432 F.3d at 344.
Although Tjie testified that he and his mother and father were
robbed and attacked by ethic Indonesian Muslims in 2001, he has
not established that this isolated incident, which the IJ
determined was motivated primarily by robbery, amounted to past
persecution or demonstrated a clear probability that Tjie would
be subjected to persecution if returned to Indonesia. See Eduard
v. Ashcroft, 379 F.3d 182, 187-88 (5th Cir. 2004); Abdel-Masieh
v. United States INS, 73 F.3d 579, 583-84 (5th Cir. 1996). Tjie
is correct that his claim may be based solely on his own oral
testimony. See 8 C.F.R. § 208.16(b). The IJ did not err,
however, by noting that he had provided no supporting
documentation, because this observation was made in conjunction
with a determination that Tjie’s testimony, while credible, was
insufficiently detailed and consistent by itself to support his
claims.
Tjie also has failed to show that the IJ’s determination
that he was not entitled to CAT relief was not supported by
substantial evidence. See Zhang, 432 F.3d at 344. The evidence
did not reflect that it was more likely than not that Tjie would
be subjected to torture upon a return to Indonesia. See 8 C.F.R.
§ 208.18(a)(1).
The petition for review is DISMISSED in part and DENIED in
part.