Sugiarto v. Holder, Jr. , 761 F.3d 102 ( 2014 )

United States Court of Appeals
For the First Circuit
No. 13-2085
SENLY SUGIARTO; JEMMY KOROMPIS; JEISY VANYA KOROMPIS,
Petitioners,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Thompson, Lipez and Barron,
Circuit Judges.
Thomas V. Massucci on brief for petitioners.
Julia J. Tyler, Office of Immigration Litigation, Civil
Division, United States Department of Justice, Stuart F. Delery,
Assistant Attorney General, Civil Division, and Shelley R. Goad,
Assistant Director, on brief for respondent.
August 1, 2014
BARRON, Circuit Judge. Petitioner Senly Sugiarto, an
Indonesian citizen, unsuccessfully applied for asylum eight years
ago. She now seeks -- along with her husband and daughter1 -- to
have the Board of Immigration Appeals reopen that earlier request.
Because we find no basis for overturning the Board's refusal to do
so, we deny her petition for review.
Sugiarto entered the United States on a tourist visa in
January 2005, overstayed that visa's expiration, and applied for
asylum in January 2006. At the time of her asylum application,
Sugiarto, who is Christian, claimed she would face "persecution
. . . on account of . . . religion" if she were removed to
Indonesia. 8 U.S.C. § 1101(a)(42)(A). An Immigration Judge denied
her application in mid-2007, and, after the Board of Immigration
Appeals affirmed, this Court denied Sugiarto's petition for review
on the merits in late 2009. Sugiarto v. Holder, 586 F.3d 90 (1st
Cir. 2009). Nearly four years later, Sugiarto filed this motion to
reopen her asylum request with the Board of Immigration Appeals,
which by regulation is authorized to decide such motions. 8 C.F.R.
§ 1003.2(c)(1).
1
Sugiarto's husband and daughter joined her asylum
application as derivative beneficiaries under 8 U.S.C.
§ 1158(b)(3)(a) and 8 C.F.R. § 1208.21. They join her petition as
well, but their claims are dependant on Sugiarto's, so we analyze
the case as if Sugiarto were the sole petitioner. Ang v. Gonzales,
430 F.3d 50, 52-53 (1st Cir. 2005).
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Motions to reopen asylum orders are generally disfavored
because they disrupt "'compelling public interests in finality and
the expeditious processing of proceedings.'" Guerrero-Santana v.
Gonzales, 499 F.3d 90, 92 (1st Cir. 2007) (quoting Raza v.
Gonzales, 484 F.3d 125, 127 (1st Cir. 2007)). Thus, such motions
must provide evidence material to the asylum claim that was not
available at the time of the asylum hearing. 8 U.S.C.
§ 1229a(c)(7)(A); 8 C.F.R. § 1003.2(c)(1). Sugiarto's motion is
especially disfavored, however, because she filed it late. 8
U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2) (motions to
reopen must generally be filed within 90 days of the final
administrative decision in the initial proceeding). As a result,
Sugiarto must clear an additional hurdle. She must first show her
motion is based on "changed country conditions arising in [her]
country of nationality or the country to which removal has been
ordered." 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R.
§ 1003.2(c)(3)(iii). In this case, the relevant country is
Indonesia.
In denying the motion to reopen, the Board concluded
Sugiarto failed to provide sufficient evidence of changed country
conditions. Instead, the Board determined the new evidence she
supplied was "largely cumulative of the evidence presented when the
case was last before the Immigration Judge." We cannot find fault
with the Board's assessment of the evidence of changed country
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conditions. We certainly cannot say that the Board's decision was
"arbitrary, capricious, or irrational," which is the standard we
must apply since we review here for an abuse of discretion. Raza,
484 F.3d at 127.
To make the required threshold showing, Sugiarto relied
primarily on an affidavit by Dr. Jeffrey A. Winters, a professor of
political science at Northwestern University and an expert on
Indonesia. Dr. Winters recounts many alarming incidents of
religious intolerance in Indonesia, including many that occurred
after Sugiarto's hearing before the Immigration Judge on May 18,
2007. But although the incidents Dr. Winters describes in his
affidavit are disturbing, the record shows the Board had reason to
conclude they are similar to those described in materials Sugiarto
offered at her asylum hearing. Furthermore, consistent with that
conclusion, Dr. Winters acknowledges in his affidavit that
"religious extremism" and violence against religious minorities
have been problems in Indonesia since at least 2001. Thus, as with
a very similar affidavit from Dr. Winters discussed in Marsadu v.
Holder, 748 F.3d 55, 59 (1st Cir. 2014), the Board did not abuse
its discretion in finding that the Winters Affidavit showed only
what we described in Marsadu as a "mere continuation" of prior
conditions, id., or what we have elsewhere described as a
"persistence of negative conditions," Lie v. Holder, 729 F.3d 28,
31 (1st Cir. 2013). Such showings are not enough to demonstrate
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the changed country conditions required of untimely motions to
reopen. Marsadu, 748 F.3d at 59; Lie, 729 F.3d at 30-31.
Sugiarto did submit additional evidence to support her
motion. This evidence included affidavits from her brother-in-law,
from her friend, and from her uncle. She also submitted a number
of news articles. But while this evidence also recounts disturbing
incidents of religiously motivated violence, here, too, the Board
acted within its discretion in finding it lacking. Some of these
additional submissions describe religiously motivated attacks that
occurred in Indonesia as many as eight years before her initial
application. These submissions thus reinforce the impression of a
persistent problem rather than a recent change. Other submissions
describe incidents without stating when they occurred. Without
that information, these submissions cannot show that conditions in
Indonesia changed after Sugiarto's asylum hearing. And while some
of the additional affidavits and articles Sugiarto submitted do
refer to attacks that occurred after her asylum hearing, this
evidence, like the Winters Affidavit, also does not suffice to
demonstrate the Board erred. The Board had a strong basis to
describe this evidence as "cumulative" -- or, put otherwise, to
conclude that it demonstrates the continuation of the same
conditions described in Sugiarto's initial hearing.
Nor do we find persuasive Sugiarto's contention that the
Board's opinion was too cursory. We have previously explained
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that, in denying a motion to reopen, the Board "is not required to
dissect in minute detail every contention that a complaining party
advances." Id. at 128. All the Board must do is "articulate[] its
decision in terms adequate to allow a reviewing court to conclude
that the agency has thought about the evidence and the issues and
reached a reasoned conclusion." Id. Here, the Board did that: it
identified the relevant record materials, and it explained why they
were insufficient.
Sugiarto's final challenge is also unavailing. She
argues she could show a pattern or practice of religious
persecution in Indonesia, see 8 C.F.R. § 1208.13(b)(2)(iii), and
thus that the Board erred by requiring her to show an
individualized risk of harm. But even if Sugiarto could show a
pattern or practice, it would not excuse her failure to show
changed country conditions -- the threshold requirement she must
satisfy because she was late in filing her motion to reopen.
Because we conclude the Board did not abuse its discretion in
concluding that Sugiarto failed to make that threshold showing, we
must deny her petition for review.
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