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


5-8-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1249




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"Ningsih v. Atty Gen USA" (2008). 2008 Decisions. Paper 1252.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1252


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                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                       No: 07-1249

                                   CHRISTI NINGSIH,

                                               Petitioner

                                              v.

                              ATTORNEY GENERAL OF
                               THE UNITED STATES,

                                              Respondent

                          Petition for Review of an Order of the
                              Board of Immigration Appeals
                                    (No. A79-318-936)
                          Immigration Judge: Donald V. Ferlise

                    Submitted pursuant to Third Circuit LAR 34.1(a)
                                   March 24, 2008

                    Before: McKEE and RENDELL, Circuit Judges,
                         and TASHIMA, Senior Circuit Judge*

                                    (Filed: May 8, 2008)

                                        OPINION

McKEE, Circuit Judge.

       Christi Ningsih petitions for review of the final order of removal issued by the



       *
       The Honorable A. Wallace Tashima, Senior Circuit Judge, United States Court of
Appeals for the Ninth Circuit, sitting by designation.
Board of Immigration Appeals denying her motion to reopen an earlier decision in which

the BIA affirmed the Immigration Judge’s denial of her application for asylum and

withholding of removal under 8 U.S.C. § 1231(b)(3) and relief under Article III of the

Convention Against Torture (“CAT”). For the reasons that follow, we will deny the

petition for review.

                                              I.

         Inasmuch as we write primarily for the parties who are familiar with this case, we

need not set forth the factual or procedural history except insofar as it may be helpful to

our brief discussion. We review the BIA’s decision under an abuse of discretion

standard, and must uphold the decision unless it is arbitrary, capricious, or contrary to

law. Sevoin v. Ashcroft, 

, 173 (3d Cir. 2002). The BIA’s findings of fact

are reviewed for substantial evidence. Korytnyuk v. Ashcroft, 

, 174 (3d Cir.

2002).

         Ningsih’s motion to reopen is based upon changed country conditions. Ningsih

argues that the BIA abused its discretion in denying her motion to reopen because it

failed properly to analyze the evidence of changed country conditions she submitted

which post-dated her original removal hearing.

         A motion to reopen will be denied if the BIA determines (1) that the movant has

failed to establish a prima facie case for relief sought, (2) that the movant has failed to

introduce previously unavailable material evidence that justified reopening, or (3) that, in


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the case of discretionary relief, that movant would not have been entitled to the

discretionary relief even if the motion were granted. INS v. Doherty, 

, 323

(1992). Here, the BIA denied Ningsih’s application because she failed to establish a

prima facie case for relief. The IJ had held that the new evidence did not establish a

pattern or practice of persecution of Chinese or Christians in Indonesia or show that

Ningsih would be individually singled out for persecution. See Lie v. Ashcroft, 

, 536 (3d Cir. 2005) (explaining requirements under 8 C.F.R. § 1208.13(b)(2)(iii)(A)

for prima facie case for asylum).

       Although the BIA cited our decision in Lie, which relied on an older country

report, the record establishes that the BIA conducted an independent analysis of the

newly submitted material and appropriately concluded that it did not satisfy Ningsih’s

entitlement to relief. We have reviewed the record and agree that the “changed

circumstances” were not such as to support his claim. Accordingly, the BIA did not

abuse its discretion in denying relief.

                                            II.

       Accordingly, for the reasons set forth above, we will deny the petition for review.




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