                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-7-2008

Tio v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3549




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                                                                 NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 07-3549


                                   MINE HUI TIO,
                                                    Petitioner

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES
                    ____________________________________

                          On Review of a Decision of the
                           Board of Immigration Appeals
                            (Agency No. A79-324-966)
                       Immigration Judge: Rosalind K. Malloy
                     ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    July 2, 2008
              Before: BARRY, SMITH and HARDIMAN, Circuit Judges

                              (Opinion filed July 7, 2008)
                                    ___________

                                      OPINION
                                     ___________

PER CURIAM

      Mine Hui Tio, a.k.a. David Andreas, an ethnically Chinese native and citizen of

Indonesia, entered the United States in 1999. In 2001, the Government charged him as

removable for overstaying his visa. Tio conceded the charge but sought asylum,

withholding, and protection under the Convention Against Torture (“CAT”).
       Tio based his claims for relief from removal on his experiences as an ethnically

Chinese Christian in Indonesia. Specifically, as a child in the 1950s and 1960s, he

felt discriminated against and hated because of his ethnicity and religion. When he was in

junior high school, native Indonesian teenagers three years his senior assaulted him and

stole his wallet and watch. Tio could not attend government-run schools, so he attended

Chinese schools until 1966, when the Indonesian government closed them. Also around

that time, officials came to his house and forbade the practice of Chinese traditions and

the use of the Chinese language. Despite being a native-born citizen, Tio felt very

unwelcome in Indonesia because of the government’s actions.

       Tio took up his parents’ livelihood in 1969. Running the family store in 1994, he

was confronted by six native Indonesians armed with knives and stones. They forced him

to turn over the day’s receipts, approximately $1500. After that incident, Tio moved to

another city to work in sales for his brother. However, one day when he was riding his

motorcycle in 1995, two motorcyclists forced him to the side of the road and robbed him

at knife-point of his money, watch, and bike. Also, on Christmas Day in 1996, four

people approached him when he walking to church, called out epithets, and yelled that he

should not be worshiping Jesus. Lastly, Tio witnessed the 1998 riots; although people

attacked his car during them, he was able to drive away unharmed. In support of his

claims about the dangers he would face if removed to Indonesia, Tio submitted the 2004

Department of State Human Rights Practices and Religious Freedom Reports.

       The Immigration Judge (“IJ”) concluded that Tio was ineligible for asylum

                                             2
because his application was untimely filed. The IJ denied Tio’s request for withholding

and CAT relief. The IJ determined that Tio had not suffered past persecution on account

of his religion or ethnicity (or any other protected ground) or established that he would

suffer future persecution or face torture if removed to Indonesia. In a short order, the

Board of Immigration Appeals (“BIA”) adopted and affirmed the IJ’s decision and

dismissed Tio’s appeal from the IJ’s decision. Tio presents a petition for review of the

BIA’s order.

       We have jurisdiction over Tio’s petition pursuant to 8 U.S.C. § 1252(a). Our

review of the BIA and IJ’s decisions, see Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.

2004), is limited to the issues relating to the denial of withholding of removal.1 We

review questions of law de novo. See Gerbier v. Holmes, 280 F.3d 297, 302 n.2 (3d Cir.

2001). We review factual findings for substantial evidence. See Butt v. Gonzales, 429

F.3d 430, 433 (3d Cir. 2005).

       We will deny Tio’s petition for review because he is not entitled to withholding of


   1
      Not only are we statutorily precluded from reviewing the determination that the
asylum application was untimely, see Sukwanputra v. Gonzales, 434 F.3d 627, 634 (3d
Cir. 2006), but also Tio did not raise the timeliness issue before the BIA or in his brief
before us. In both fora, Tio’s focus is on his claim that he suffered past persecution in
Indonesia (in this appeal, he argues more specifically that he is entitled to asylum and
withholding, but he does not mention CAT relief). The BIA did state that it was
affirming the IJ’s “alternative denial” of the asylum claim for Tio’s failure to meet his
burden of proof. However, we read this to mean merely that the BIA agreed with the IJ’s
conclusion that “even if . . . the application had been timely filed, the Court would find
that [Tio] had failed to establish his eligibility for the relief of asylum.” R. 58. In any
event, our ultimate holding that Tio did not show past persecution would preclude success
on the asylum claim.

                                             3
removal. Despite his arguments to the contrary, Tio failed to prove that he suffered past

persecution. In part, he described discrimination on the basis of his ethnicity and religion.

Such discrimination may be morally reprehensible, but it is not persecution. See Chen v.

Ashcroft, 381 F.3d 221, 233 n.20 (3d Cir. 2004) (noting that courts routinely deny

immigration relief to persons “who suffer racial discrimination that falls short of

‘persecution’”). Tio also experienced disturbing attacks; however, the attacks were

isolated criminal acts that do not rise to the level of persecution. Cf. Lie v. Ashcroft, 396

F.3d 530, 536 (3d Cir. 2005) (holding that “two isolated criminal acts, perpetrated by

unknown assailants, which resulted only in the theft of some personal property and a

minor injury, [are] not sufficiently severe to be considered persecution”). Tio himself

conceded that two of the attacks were “random robberies.” R. 80.

       Furthermore, Tio was not entitled to relief based his claim that he would face

future persecution because of a practice or pattern of persecution against ethnic Chinese

Christians in Indonesia. Ethnically Chinese (Christian or otherwise) citizens in Indonesia

do face violence at the hands of their fellow citizens and suffer indignities, including

discrimination. However, the record does not show that the treatment of ethnic Chinese

Christians in Indonesia is the result of government action or acquiescence, or that it

constitutes a pattern or practice of persecution. Cf. Lie, 396 F.3d at 537-38;

Sukwanputra, 434 F.3d at 637 n. 10.

       In sum, Tio did not show past persecution or a clear probability that he would be

persecuted in Indonesia on account of a protected ground. See Zubeda v. Ashcroft, 333

                                              4
F.3d 463, 469 (3d Cir. 2003); 8 C.F.R. § 208.16(b). Accordingly, he was not entitled to

withholding of removal. We will deny the petition for review.




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