Kok Cheah v. Atty Gen USA

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MANDATE ISSUED, filed.

Kok Cheah v. Atty Gen USA

Doc. 0 Att. 1

Case: 09-1794

Document: 003110236371

Page: 1

Date Filed: 08/02/2010

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N O T PRECEDENTIAL U N IT E D STATES COURT OF APPEALS F O R THE THIRD CIRCUIT ___________ N o . 09-1794 ___________ K O K WEI CHEAH, P e titio n e r v. A T T O R N E Y GENERAL OF THE UNITED STATES, Respondent ____________________________________ O n Petition for Review of an Order of the B o a rd of Immigration Appeals (A g e n c y No. A97-447-363) I m m ig r a tio n Judge: Honorable Eugene Pugliese ____________________________________

S u b m itte d Pursuant to Third Circuit LAR 34.1(a) M a rc h 17, 2010 B e f o re : MCKEE, Chief Judge, HARDIMAN AND COWEN, Circuit Judges (O p in io n filed: June 9, 2010) ___________ O P IN IO N ___________ P E R CURIAM P e titio n e r Kok Wei Cheah is a native and citizen of Malaysia who petitions for re v ie w of the Board of Immigration Appeals's ("BIA") final order of removal. For the f o llo w in g reasons, we will deny Cheah's petition for review.

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Case: 09-1794

Document: 003110236371

Page: 2

Date Filed: 08/02/2010

I. C h ea h entered the United States on a six-month visitor's visa in August 2003. In A p ril 2005, the Department of Homeland Security issued a Notice to Appear that charged C h e a h with removability because he did not leave the United States at the conclusion of h is authorized stay. See 8 U.S.C. § 1227(a)(1)(B). Cheah conceded removability but in J a n u a ry 2006 he filed an application for asylum, withholding of removal, and protection u n d e r the United Nations Convention Against Torture ("CAT") based on his claim that he w a s persecuted in Malaysia due to his Chinese ethnicity. At his removal proceeding, Cheah testified to the long-standing and systemic d is c rim in a tio n against ethnic-Chinese in Malaysia. As to his personal experiences, Cheah a ss e rte d that his house was broken into and robbed multiple times. He also claimed that, a f te r he and a friend were robbed at knife-point, the police advised him to "let it go" b e c au s e he had not suffered any physical harm. Further, Cheah's statement in support of h is asylum application asserted that he was not allowed to attend college or obtain a stock b ro k e r's license due to his Chinese ethnicity. He attended college in Singapore and found e m p lo ym e n t in Malaysia as an "assistant to a stock broker." Cheah testified that he did n o t want to return to Malaysia because he was "afraid of being harmed" by ethnicM a l a ys . The IJ denied all relief. He dismissed Cheah's asylum claim as untimely, as it was n o t filed within one year of his entry into the United States. The IJ then concluded that

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C h e a h had not met his burden of proof to show that he merited withholding of removal or C A T protection. The IJ acknowledged that the 2005 United States Department of State C o u n try Report for Malaysia indicated that ethnic-Malays "are given certain types of b e n e fits and so-called `special position' when it comes to certain types of government b e n e f its. . . and [] that discrimination does exist . . . against people who are not ethnic M a la ys ." He nevertheless determined that Cheah had not established past persecution or d e m o n s tra te d that he "has any reasonable fear of harm either at the hands of the g o v e rn m e n t or at the hands of his fellow citizens if he should return to Malaysia." T h e BIA agreed that Cheah's asylum claim was untimely, and determined that C h e a h did not demonstrate any extraordinary circumstance warranting an exception to the f ilin g deadline. The BIA then concluded that the IJ "properly determined that the in c id e n ts of theft, assault, and discrimination the respondent recounted do not rise to the le v e l of persecution," and that the testimony and evidence did not establish that it was " m o r e likely than not he will be subjected to harm rising to the level of persecution." The B IA further agreed that Cheah did not meet the standard for CAT protection. Through counsel, Cheah now petitions for review of the BIA's final order of re m o v a l. II We have jurisdiction to review the BIA's final order of removal under 8 U.S.C. § 1 2 5 2 (a ). The BIA's decision is reviewed under the substantial evidence standard and will

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b e upheld "unless the evidence not only supports a contrary conclusion, but compels it." Zubeda v. Ashcroft, 333 F.3d 463, 471 (3d Cir. 2003) (internal citation omitted). Substantial evidence supports the BIA's decision that Cheah did not meet the s ta n d a rd for withholding of removal.1 Withholding of removal is mandatory once "the A tto rn e y General decides that the alien's life or freedom would be threatened in that c o u n try" on account of race, religion, nationality, membership in a particular social group, o r political opinion. 8 U.S.C. § 1231(b)(3). To obtain such relief, the applicant must e sta b lish a "clear probability"--i.e., that it is more likely than not--that he or she would s u f f er persecution upon return to his or her country. Kaita v. Att'y Gen., 522 F.3d 288, 2 9 6 (3d Cir. 2008). "An applicant can meet the standard [for withholding of removal] by p ro v in g past persecution, which creates a rebuttable presumption of future persecution." Id. (citing 8 C.F.R. § 1208.16(b)(1)). As the BIA determined, neither the generalized discrimination suffered by the e th n ic - C h i n e s e in Malaysia nor that suffered personally by Cheah rises to the level of past p e rs e c u tio n . See Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir. 2005) (reiterating that p e rs e c u tio n connotes extreme behavior, including `threats to life, confinement, torture, an d economic restrictions so severe that they constitute a threat to life or freedom.'"

Cheah does not challenge the dismissal of his asylum claim as untimely. Even if h e did, we would lack jurisdiction to review that decision. See 8 U.S.C. § 1158(a)(3). We note, however, that the government incorrectly argues that Cheah has failed to argue th a t the BIA erred in denying his other claims of relief. 4

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(in te rn a l citation omitted)). While such discrimination may be reprehensible, it is not p e rs e c u tio n . See Chen v. Ashcroft, 381 F.3d 221, 233 n.20 (3d Cir. 2004) (stating that c o u rts "routinely deny relief to those who suffer racial discrimination that falls short of `p e rs e c u tio n '" ). To the extent that Cheah claims that the robberies constituted p e rs e c u tio n , this argument also fails, as he set forth no evidence that these were anything m o re than isolated criminal acts. See Lie, 396 F.3d at 536. In sum, neither the d o c u m e n ta ry evidence nor Cheah's testimony established past persecution or a clear p ro b a b ility that he would be persecuted upon his return to Malaysia. See Zubeda, 333 F .3 d at 469-70. Accordingly, he is not entitled to withholding of removal. Finally, because Cheah offered no evidence that he is likely to be tortured upon his re tu rn to Malaysia, he also failed to establish eligibility for CAT protection. See 8 C.F.R. § 208.16(c)(4). F o r the foregoing reasons, we deny Cheah's petition for review.

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