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


5-28-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2324




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                                                                     NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 07-2324


                                FELMER OLDY SUWU,
                                               Petitioner

                                             v.

                  ATTORNEY GENERAL OF THE UNITED STATES


                        On Petition for Review of an Order of the
                             Board of Immigration Appeals
                                  BIA No. A79-708-183
                 (U.S. Immigration Judge: Honorable Daniel A. Meisner)


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    April 9, 2008

     Before: SCIRICA, Chief Judge, CHAGARES and ALDISERT, Circuit Judges

                                  (Filed : May 28, 2008)


                               OPINION OF THE COURT


PER CURIAM.

       Felmer Oldy Suwu has filed a petition for review of an order of the Board of

Immigration Appeals (“BIA”) denying his motion to reopen his removal proceedings.

For the reasons that follow, we will deny the petition for review.
       Suwu is a citizen of Indonesia. In 1995, he was admitted into the United States as

a non-immigrant visitor, but he overstayed his visa. In April 2003, he was placed in

removal proceedings. He conceded removability. On the basis of his Christianity, citing

violence by Muslims against Christians in Indonesia, Suwu applied for asylum,

withholding of removal, relief under the Convention Against Torture (“CAT”), and

voluntary departure in alternative to removal. In May 2004, the Immigration Judge (“IJ”)

denied asylum, withholding, and CAT relief, finding that Suwu untimely filed his asylum

application and failed to meet the burden of proving eligibility for asylum, withholding,

and CAT relief. The IJ also noted that Suwu’s home region is predominantly Christian,

that he alleged no persecution to himself or to his family, and that his close family

members remained in Indonesia without harm. The IJ granted voluntary departure. On

July 27, 2005, the BIA dismissed Suwu’s appeal and granted voluntary departure within

sixty days of its order. More than one year later, on November 6, 2006, Suwu filed a

motion to reopen his removal proceedings based on based on changed country conditions.

On March 30, 2007, the BIA denied the motion. This petition for review followed.

       We have jurisdiction to review the BIA’s denial of Suwu’s motion to reopen. See

8 U.S.C. § 1252. We review the denial of a motion to reopen for abuse of discretion. See

Sevoian v. Ashcroft, 

, 174 (3d Cir. 2002). Accordingly, to succeed on his

petition for review, Suwu must show that the BIA’s decision was somehow arbitrary,

irrational, or contrary to law. See 

alien must file a motion to reopen no later than ninety days after the date on

which the final administrative decision was rendered See 8 C.F.R. § 1003.2(c)(2). There

is an exception to this limitation when an applicant for asylum or withholding of removal

demonstrates that his or her claim is based on changed circumstances in the country of

removal, if supporting evidence is material and was not available and could not have been

discovered or presented at the prior hearing. See 8 C.F.R. § 1003.2(c)(3)(ii).

       In his motion to reopen, Suwu claimed that he satisfied the changed circumstances

exception because of deteriorating conditions for Christians in Indonesia. Suwu

submitted supporting materials, including a letter from his mother, the State Department

International Religious Freedom Report 2005 for Indonesia (“the Report”), and articles by

the International Christian Concern. The materials contain documentation of violence

against Christians in Indonesia that occurred since the time of the hearing. For example,

Suwu’s mother’s letter recounts that in October 2005, three women were beheaded on

their way home from a Christian school. Also, the Report and articles contain statements

that the Indonesian government at times condoned the abuse of religious freedom and

suggest that the government may have been directly involved in the persecution of

Christians. However, the Report also notes that there was no change in the status of

respect for religious freedom during the reported period, and that the Indonesian

government made significant efforts to reduce religious violence, though such violence

did sometimes occur. Similarly, although the articles by the International Christian



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Concern focus on the continued religious violence in Indonesia with the suspicion of

government collusion, the articles also acknowledged that Indonesian authorities were

taking steps to protect against church bombings in advance of the Christmas holiday, and

that police had re-arrested suspects in the beheadings incident after their release by the

army. Finally, regarding Suwu’s mother’s account that Suwu’s uncle was a victim of a

militant Islamic extremist group, she states only that he was “traumatized and depressed”

by examples of terrorism against Christians, and then he fell ill after suffering a stroke

several months before her letter, which is undated. As noted by the BIA, the letter does

not identify when the uncle became ill and does not state that he was actually harmed for

being a Christian.

       To the extent that Suwu argues that his motion to reopen constituted a renewed

request for asylum, withholding of removal, and CAT relief, and that the BIA erred in

failing to consider whether he made a prima facie showing of eligibility for relief in his

motion to reopen, we reject this argument. Suwu does not dispute that his motion to

reopen was filed beyond the ninety-day filing period, but he does not address how his

motion satisfied the criteria of 8 C.F.R. § 1003.2(c)(3)(ii), the procedural hurdle he must

overcome before having his untimely motion to reopen considered. See Shardar v.

Attorney General, 

, 313-14 (3d Cir. 2007). In sum, we conclude that Suwu

did not sufficiently establish changed country conditions in Indonesia to qualify for an




                                              4
exception to the ninety-day filing requirement. Thus, the BIA did not abuse its discretion

in denying the motion to reopen.

      We will deny the petition for review.




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