Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-30-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1181




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                                                 NOT PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT


                     No. 05-1181


               JOHANIS TILAAR;
             OLGA MANDAGI, wife;
            BRAMMY JOHANES, child,
                          Petitioners

                          v.

          *ALBERTO GONZALES,
 ATTORNEY GENERAL OF THE UNITED STATES,
                           Respondent

        *(Amended pursuant to F.R.A.P. 43(c))


          Petition for Review of Orders of the
          United States Department of Justice
            Board of Immigration Appeals
        (BIA Nos. A79-319-283, A79-319-284,
                   and A79-319-285)


      Submitted Under Third Circuit LAR 34.1(a)
                  March 27, 2006

Before: RENDELL, SMITH and BECKER, Circuit Judges.

               (Filed: March 30, 2006)


             OPINION OF THE COURT
RENDELL, Circuit Judge.

       Petitioner Johanis Tilaar1 and his wife, Olga Mandagi, and son, Brammy Johanes,

petition for review of the Board of Immigration Appeals (BIA)’s denial of their motion

to reopen removal proceedings. For the following reasons, we will deny their petition for

review.

                                             I.

       The Tilaar family came to the United States from Indonesia on a non-immigrant

tourist visa in 1996. In May of 2001, Johanis Tilaar filed an application for asylum and

withholding of removal on behalf of himself and his wife and son. At a hearing before

the immigration judge (IJ) on April 14, 2003, Tilaar supported his asylum claim with

testimony that, as a Christian, he had been the target of religiously-motivated violence

while still in Indonesia. He also submitted news articles from 1999 through 2002 that

documented religious violence in Indonesia and the State Department’s 2002

International Religious Freedom Report. The IJ issued an oral decision at the hearing

denying the Tilaars’ requests for relief and ordered removal. The Tilaars appealed the

IJ’s decision to the BIA, and the BIA affirmed, without opinion, on June 8, 2004.

       The Tilaars filed a motion to reopen based on “changed country conditions” on

September 14, 2004. In support of their motion, the Tilaars submitted the State



  1
   The briefs spell the petitioners’ family name “Tailaar.” Because their petition for
review lists their name as “Tilaar,” we refer to them by that name here.

                                             2
Department’s 2003 update to the 2002 Religious Freedom Report that the IJ had

considered and various other news articles and reports dating from 1998 through 2004.

The BIA denied the motion on December 21, 2004. It observed, first, that the motion

was filed out of time, and, second, that the motion did not qualify for the “changed

country condition” exception to the 90-day filing deadline. The BIA noted that some of

the materials attached to the Tilaars’ motion were available on the date of the previous

hearing before the IJ, and that the alien bears a “heavy burden” to establish that, if the

proceedings were reopened, the changed country condition evidence would likely change

the result of his case. The BIA thus concluded that the Tilaars had failed to establish that

reopening was warranted.

                                             II.

       We review the BIA’s denial of a motion to reopen for abuse of discretion.

Sevoian v. Ashcroft, 

, 170 (3d Cir. 2002).

       The Tilaars argue that the BIA should have granted their motion to reopen under

the “changed country condition” exception to the 90-day filing deadline.2 The applicable

regulations provide an exception to the 90-day filing deadline for motions to reopen

based on “changed circumstances arising in the country of nationality . . . if such

evidence is material and was not available and could not have been discovered or



  2
    The Tilaars do not challenge the BIA’s conclusion that their motion to reopen was
filed out of time.

                                              3
presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii).

       In this case, the evidence supporting the motion to reopen was neither material nor

novel. As the BIA noted, much of the material that the Tilaars presented in support of

their application had been published, and was therefore available at the time of their

original hearing before the IJ in 2003. And the material that was more recent, including

the update of the State Department Report, was merely cumulative of the evidence

presented to the IJ; it did not establish any material change in or worsening of the plight

of Christians in Indonesia. Cf. Dong v. Ashcroft, 143 F. App’x 430, 432-33 (3d Cir.

2005) (concluding that updated country information that merely reinforces the alien’s

original asylum claim does not satisfy the “changed country condition” exception).

       Thus, the BIA did not abuse its discretion in denying the Tilaars’ motion to

reopen. We will deny the petition for review.




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