Filed: Oct. 17, 2013
Latest Update: Mar. 28, 2017
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 13-1610 _ ROY ALISON SOPAHELUWAKAN, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent _ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A078-735-740) Immigration Judge: Honorable Sharon Hoffman _ Submitted Pursuant to Third Circuit LAR 34.1(a) October 16, 2013 Before: VANASKIE, SCIRICA and COWEN, Circuit Judges (Opinion filed: October 17, 2013) _ OPINION _ PER CURIAM Roy A
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 13-1610 _ ROY ALISON SOPAHELUWAKAN, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent _ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A078-735-740) Immigration Judge: Honorable Sharon Hoffman _ Submitted Pursuant to Third Circuit LAR 34.1(a) October 16, 2013 Before: VANASKIE, SCIRICA and COWEN, Circuit Judges (Opinion filed: October 17, 2013) _ OPINION _ PER CURIAM Roy Al..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 13-1610
___________
ROY ALISON SOPAHELUWAKAN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A078-735-740)
Immigration Judge: Honorable Sharon Hoffman
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 16, 2013
Before: VANASKIE, SCIRICA and COWEN, Circuit Judges
(Opinion filed: October 17, 2013)
___________
OPINION
___________
PER CURIAM
Roy Alison Sopaheluwakan (“Petitioner”), a native and citizen of Indonesia,
petitions for review of an order of the Board of Immigration Appeals (“Board”) denying
his motion to reopen. For the reasons that follow, we will deny the petition for review.
I.
Petitioner was admitted to the United States in 1992 as a nonimmigrant with
authorization to remain for a temporary period not to exceed October 23, 1992. (A.R.
205.) He remained past that date without authorization. In 2001, the Immigration and
Naturalization Service issued a Notice to Appear (“NTA”), charging Petitioner as
removable for having remained in the United States for a time longer than permitted.
Petitioner admitted the facts alleged in the NTA and conceded removability.
Petitioner applied for asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”). He asserted that, as a Christian, he would be
persecuted in Indonesia given the conflict there between Christian and Muslim groups.
(Id. 177, 180.) He also claimed that he would be persecuted due to his Ambon ethnicity.
(Id. 149.) In support of his application, he submitted the State Department’s 2000 Report
on Human Rights Practices in Indonesia, among other documents. (Id. 115-148.)
On December 20, 2001, the Immigration Judge (“IJ”) denied Petitioner’s
applications and granted his alternative application for voluntary departure. (Id. 107.)
The IJ also entered an alternate order of removal to Indonesia, to take effect if Petitioner
did not depart as required. Petitioner did not appeal the IJ’s decision, nor did he
voluntarily depart the United States. As a result, the alternate order of removal went into
effect.
Nine years later, Petitioner filed a motion to reopen based on changed country
conditions in Indonesia. (Id. 51.) He again sought asylum, and argued that persecution
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of Christians by “Islamic fundamentalists” had escalated and that the Indonesian
government participated in the persecution. (Id.) Petitioner also claimed that he was
“fearful to return to Indonesia because of the escalation of violence against the
Christians.” (Id. 52.) He submitted the State Department’s 2009 International Religious
Freedom Report for Indonesia in support, along with several news articles.
The IJ denied the motion to reopen on November 1, 2010, finding that Petitioner
did not demonstrate that the conditions in Indonesia posed a threat to him in 2010 that did
not exist at the time of his hearing in 2001 when he was denied asylum. (Id. 42 (noting
that “inter religious strife has existed in Indonesia for decades”).) Petitioner appealed,
and the Board affirmed, agreeing with the IJ that Petitioner did not demonstrate
materially changed conditions in Indonesia. (Id. 7.) Petitioner timely filed his petition
for review.
II.
We have jurisdiction to pursuant to 8 U.S.C. § 1252(a) to review the Board’s
denial of Petitioner’s motion to reopen, and we apply the abuse of discretion standard to
our review. See Fadiga v. Att’y Gen., 488 F.3d 142, 153 (3d Cir. 2007). The Board’s
decision is entitled to “broad deference,” Ezeagwuna v. Ashcroft,
325 F.3d 396, 409 (3d
Cir. 2003) (internal quotation marks and citation omitted), and “will not be disturbed
unless [it is] found to be arbitrary, irrational, or contrary to law,” Guo v. Ashcroft,
386
F.3d 556, 562 (3d Cir. 2004) (citation omitted).
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With limited exceptions, a motion to reopen must be filed within ninety days of
the date of entry of a final administrative order. 8 U.S.C. § 1229a(c)(7)(C)(i). It is
undisputed that Petitioner’s motion to reopen was untimely. (A.R. 15-16.) Therefore, to
circumvent that time limit, he had to provide material evidence of changed conditions in
Indonesia that could not have been discovered or presented during the previous
proceeding. 8 U.S.C. § 1229a(c)(7)(C)(ii). The burden of proof on a motion to reopen is
on the alien to establish eligibility for the requested relief. See Huang v. Att’y Gen., 620
F.3d 372, 389 (3d Cir. 2010).
Petitioner argues that the IJ and the Board abused their discretion in denying his
motion to reopen. (Pet’r Br. 12-13.) However, we perceive no abuse of discretion. The
burden was on Petitioner to (1) provide evidence demonstrating that conditions changed
in Indonesia; (2) demonstrate that the evidence was material; and (3) establish that the
evidence was not available and could not have been presented at his previous proceeding.
See Abulashvili v. Att’y Gen., 663 F.3d 197, 202-03 (3d Cir. 2011). As the Government
aptly points out, (Resp’t Br. 9-15), none of the evidence he submitted showed that
conditions in Indonesia changed from 2000 to 2009, nor did Petitioner provide any
meaningful comparison between conditions for Christians in Indonesia at the time he
filed his motion to reopen and conditions at the time of his 2001 hearing. We agree with
4
the Board that Petitioner did not show that the treatment of Christians in Indonesia
changed since time of his asylum hearing.1
Petitioner also argues that the IJ and the Board applied the wrong legal standard
and “required him to meet the higher standard of showing that changed conditions
actually posed a threat to him rather than that his fear was objectively reasonable . . . .”
(Pet’r Br. 12.) His argument is misguided, because he never made the threshold showing
that conditions in Indonesia changed. When faced with an untimely motion to reopen,
the Board must consider whether the Petitioner provided material evidence of changed
country conditions, and that is precisely what happened in this case. The Board noted
that “interreligious violence was widespread” in Indonesia at the time of Petitioner’s
2001 hearing, and based its decision on the fact that he failed to “make any meaningful
comparison” between the conditions in Indonesia in 2000 and the conditions there in
2009. (A.R. 2.) The Board cited and applied the proper legal standard, as set forth in 8
C.F.R. § 1003.2(c)(3)(1).
III.
Because the denial of Petitioner’s motion to reopen was not an abuse of discretion,
see Fadiga, 488 F.3d at 153, we will deny his petition for review.
1
Petitioner’s brief to this Court does not even make clear the difference between how
Christians were treated in Indonesia at the time of his asylum hearing, or that any change
occurred between then and the time he filed his motion to reopen.
5
