Fen Tjong Lie v. Holder , 729 F.3d 28 ( 2013 )

United States Court of Appeals
For the First Circuit
No. 13-1311
FEN TJONG LIE,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Lipez and Howard, Circuit Judges.
Thomas V. Massucci on brief for petitioner.
Virginia Lum, Office of Immigration Litigation, Civil
Division, Department of Justice, Stuart F. Delery, Acting Assistant
Attorney General, Civil Division, and Nancy Friedman, Senior
Litigation Counsel, Office of Immigration Litigation, on brief for
respondent.
September 4, 2013
LYNCH, Chief Judge. Fen Tjong Lie, a Christian and
ethnic-Chinese native and citizen of Indonesia, petitions for
judicial review of an order of the Board of Immigration Appeals
(BIA) denying his motion to reopen removal proceedings on the basis
of changed country circumstances. Because the BIA did not abuse
its discretion in denying Lie's motion, we deny his petition for
review.
I. Background
On February 10, 2004, Lie was charged with removability
as a noncitizen who overstayed his visa. He conceded removability
but applied for asylum and withholding of removal. On December 11,
2006, an Immigration Judge (IJ) denied Lie's applications and
ordered him removed. Lie appealed to the BIA, which on December
11, 2008 remanded for further consideration of Lie's claim that, if
removed, he would face persecution as a Christian and ethnic-
Chinese Indonesian.
After a hearing addressing this claim, the IJ on April 7,
2011 again denied the applications for relief and ordered Lie
removed. Lie again appealed to the BIA, which on July 13, 2012
dismissed the appeal, agreeing with the IJ that Lie had failed to
show a pattern or practice of persecution. Lie did not petition
for judicial review of that dismissal.
Instead, Lie filed a motion to reconsider, which the BIA
denied on October 15, 2012. Lie did not petition for judicial
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review of this denial either, but rather filed what the parties
agree was an untimely motion to reopen removal proceedings on the
basis of changed conditions in Indonesia. On February 8, 2013, the
BIA denied that motion, and this petition for review followed.
II. Discussion
The BIA's denial of Lie's motion to reopen rests on two
independent conclusions. The first is that Lie failed to submit
the type of evidence of changed country circumstances that would,
under 8 C.F.R. § 1003.2(c)(3)(ii), excuse his motion's
untimeliness. The second is that Lie failed to demonstrate the
type of exceptional situation that would warrant exercising the
BIA's discretion to reopen proceedings sua sponte. Lie does not
appear to challenge the second conclusion, and, even if he did, we
would lack jurisdiction to review it. E.g., Peralta v. Holder, 567
F.3d 31, 34 (1st Cir. 2009). The first conclusion is reviewed for
abuse of discretion. E.g., Beltre-Veloz v. Mukasey, 533 F.3d 7, 9
(1st Cir. 2008).
Lie argues that the first conclusion constituted an abuse
of discretion because it was cursory. Specifically, Lie questions
the BIA's statement that he failed to submit "persuasive, material
evidence of changed conditions in Indonesia." According to Lie, it
was "tautological (and therefore superfluous, if not meaningless)"
for the BIA to explain its decision by referring to a lack of
persuasive evidence. Lie says the evidence he submitted in support
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of his motion was material, so he is puzzled at how the BIA could
have found otherwise. We disagree with Lie's characterization.
The BIA's decision was concise, but that does not make it cursory.
After making the statement quoted above, the BIA went on to address
the evidence that Lie argues supported his motion.
That evidence consisted of an affidavit by Jeffrey A.
Winters, Ph.D., a professor in Northwestern University's Political
Science Department who specializes in comparative and international
political economy, labor, and human rights in Indonesia. Lie
claims the Winters affidavit demonstrates that persecution of
Christian and ethnic-Chinese Indonesians increased between his
January 2011 remand hearing and his December 2012 motion to reopen.
The BIA determined that the Winters affidavit largely discussed
conditions that prevailed in Indonesia prior to Lie's remand
hearing, and thus did not constitute evidence that was unavailable
at the time of that hearing, as required by 8 C.F.R.
§ 1003.2(c)(3)(ii) to excuse an untimely motion.1 We cannot
conclude that this determination constituted an abuse of
discretion. The Winters affidavit's findings are primarily based
on events that occurred before 2011. And the few sources on which
1
Lie argues that the Winters affidavit was "unavailable"
prior to its execution in December 2012. The regulation's
exception for untimely motions in the event of previously
unavailable evidence was not meant to extend to cases like this
one, where evidence the BIA found to be previously available is
simply newly packaged.
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the Winters affidavit relies to portray circumstances during the
relevant period of 2011-2012 do not support the proposition that
circumstances have changed. Rather, they show the persistence of
negative conditions for Christian and ethnic-Chinese Indonesians.
We find it notable, though not necessary to our
disposition of this case, that the Third Circuit has denied
petitions for review in at least two cases where this same expert
was used to establish the existence of persecution of Christian and
ethnic-Chinese Indonesians. In Soetiono v. Attorney General of
United States, "the BIA concluded that the U.S. Department of State
country reports--as opposed to the testimony of Dr. Winters--
constitute the best evidence of current conditions of Indonesia,
and that those reports do not make for a record demonstrating
persecution that is sufficiently systemic, pervasive, or organized
so as to constitute a pattern or practice of persecution." 431 F.
App'x 150, 153-54 (3d Cir. 2011) (internal quotation marks
omitted). Said the Third Circuit, "we can find no reversible error
with respect to the BIA's decision in this regard as we have
previously stated that 'Country reports . . . are the most
appropriate and perhaps the best resource for information on
political situations in foreign nations.'" Id. at 156 (alteration
in original) (quoting Zubeda v. Ashcroft, 333 F.3d 463, 477-78 (3d
Cir. 2003)). And in Tanzil v. Attorney General of United States,
the Third Circuit labeled Dr. Winters's testimony about changed
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circumstances in Indonesia "inconclusive," and held that the BIA
did not abuse its discretion in declining to reopen proceedings
based on the evidence. 426 F. App'x 104, 108 (3d Cir. 2011).
III. Conclusion
For the reasons stated above, Lie's petition for review
is DENIED.
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