Kandio v. Ashcroft , 132 F. App'x 851 ( 2005 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-2258
JULIA AGUSTIEN KANDIO,
Petitioner,
v.
ALBERTO R. GONZÁLES, ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Lipez and Howard, Circuit Judges.
Yan Wang and Law Office of Matthew Jeon, P.C. on brief for
petitioner.
Maria M. Mlynar, Department of Justice, Civil Division, Office
of Immigration Litigation, Peter D. Keisler, Assistant Attorney
General, Civil Division, and Linda S. Wernery, Senior Litigation
Counsel, Office of Immigration Litigation, on brief for respondent.
June, 3, 2005
Per Curiam. Julia Agustien Kandio is a native and
citizen of Indonesia who entered the United States on September 22,
1991. She stayed beyond the expiration of her temporary visa on
March 21, 1992, and on July 9, 2001, filed an application for
asylum and withholding of removal, which was denied. The
Immigration and Naturalization Service issued a Notice to Appear on
November 15, 2001, charging her with removability under 8 U.S.C. §
1227(a)(1)(B) (2000) as a nonimmigrant alien who remained in the
United States longer than permitted. Kandio conceded removability
but sought relief on the ground that she feared religious
persecution for being Christian.
At her removal hearing on January 8, 2002, Kandio
testified that members of her principally Muslim community in
Indonesia threatened Christians and once ransacked her home, that
her husband’s family harassed her and her husband (who had
converted to Christianity) because of their faith, and that she
came to the United States with her son when the family threatened
to kill him if he became a confirmed Christian. Her husband
remained in Indonesia. Kandio testified that she learned from her
own family about escalating “problems” between Muslims and
Christians starting in 1998, and that they told her that they were
afraid to go to church and that it was not safe for her to return
to Indonesia.
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At the conclusion of the hearing, the immigration judge
determined that Kandio was ineligible for asylum because her
application was not timely. The judge also denied her application
for withholding of removal. Although he found Kandio to be
credible, he found that she failed to establish a clear probability
of persecution if she returned to Indonesia.
Kandio filed a notice of appeal to the Board of
Immigration Appeals (“Board”) on January 10, 2002, indicating that
she would file a brief for the appeal. After her attorney was
granted one extension for filing a brief, a second extension
request was denied on August 5, 2002, and on August 7, 2003, the
Board summarily dismissed Kandio’s appeal under 8 C.F.R. §
1003.1(d)(2)(i)(E), for failing to file a brief without adequate
explanation.
Kandio timely filed a motion before the Board to reopen
the proceedings. Supporting the motion was an affidavit from
Kandio’s cousin stating that the husband’s family had (when Kandio
was in Indonesia) threatened to kill Kandio and her son; letters
from Kandio’s parents and a friend describing attacks and threats
against Christians, and saying that “people” were searching for
Kandio; as well as a number of articles describing Indonesian
religious strife. On April 8, 2004, the Board denied the motion to
reopen, despite finding that the new evidence was material and not
previously available. The Board concluded that the motion did not
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cure her untimely asylum application, and that the evidence (old
and new) did not establish that she was more likely than not to be
persecuted or tortured because she failed to establish that the
threat “exists on a country-wide basis.”
Kandia filed a second motion to reopen with the Board on
July 8, 2004, that included certificates of her parents’ death and
her sister’s hospitalization, a letter saying that the sister had
suffered mental distress because of conditions in Indonesia, and
other background materials. The Board denied her motion on August
17, holding that Kandio’s second motion both exceeded the maximum
number of motions to reopen--which is one, see 8 C.F.R. §
1003.2(c)(2)--and was also untimely, being filed more than 90 days,
see id., after the Board’s final order on August 7, 2003.
The Board also held that the exception of 8 C.F.R. §
1003.2(c)(3)(ii)--permitting an additional motion to reopen based
on newly available material evidence of changed circumstances in
the country--was inapplicable because the information about her
family only amounted to changed personal circumstances. It also
concluded that the background evidence of “some attacks on
Christian churches, and some fighting between Muslims and
Christians” did not remedy her untimely asylum application and did
not show a “clear probability of persecution” or torture in
Indonesia.
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Kandio filed a petition for review in this court on
September 16, 2004, which was timely as to her second motion to
reopen. However, she did not file a petition for review within
thirty days either of the Board’s initial affirmance of the
immigration judge’s decision, or of its denial of her first motion
to reopen. “All final [Board] orders must be appealed to this
court within 30 days.” Ven v. Ashcroft, 386 F.3d 357, 359 (1st
Cir. 2004); see 8 U.S.C. § 1252(b)(1). “A motion to reopen or
reconsider does not toll the period for filing a petition for
judicial review of the underlying order”; rather, “the time to
appeal denial orders continues to run despite the filing of motions
to reopen or reconsider.” Ven, 386 F.3d at 359-60; see also Zhang
v. INS, 348 F.3d 289, 292 (1st Cir. 2003). As a result, we lack
jurisdiction to review either the Board’s initial affirmance or its
denial of Kandio’s first motion to reopen proceedings. See De
Araujo v. Ashcroft, 399 F.3d 84, 88 (1st Cir. 2005); Zhang, 348
F.3d at 292.
We review the denial of a motion to reopen for abuse of
discretion. Jupiter v. Ashcroft, 396 F.3d 487, 490 (1st Cir. 2005)
(“regardless of the substantive claim involved”); Maindrond v.
Ashcroft, 385 F.3d 98, 100 (1st Cir. 2004). To survive the bar on
multiple or late motions to reopen, the petitioner’s motion must be
“based on changed circumstances arising in the country . . . if
such evidence is material and was not available and could not have
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been discovered or presented at the previous hearing.” 8 C.F.R. §
1003.2(c)(3)(ii). We agree with the Board that the death of
Kandio’s parents was a matter of personal circumstances and did not
establish changed circumstances in Indonesia relevant to Kandio’s
relief.
The remaining material is the documentation purporting to
establish that Kandio’s sister suffered a stroke caused by the
situation in Indonesia; several articles describing attacks on five
Christian churches (including the destruction of church property
and the beating of a pastor and a church member) in June 2004;
descriptions of regulatory restrictions on churches along with some
church closings and threats in March and April of 2004; an article
describing sectarian fighting in a city in the Malaku islands that
killed 37 people in spring 2004; and several articles dated in 2002
describing violence during the period from 1999 to 2002, including
anti-Christian violence in 2000 and 2001 in the Malaku Islands
during which 15,000 Christians were reportedly killed.
The Board did not abuse its discretion in finding that
Kandio’s evidence was inadequate to provide her relief: one part of
the background material described only scattered incidents of
violence against several churches and their members (as well as
providing somewhat vague accounts of tightening regulatory
restrictions) that reflected, at most, a continuation of the kinds
of circumstances that the Board had previously considered; the
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other part described more serious violence, but this violence was
several years in the past and evidence of those conditions (if even
still relevant) could have been provided earlier. Kandio’s
sister’s illness is primarily a personal circumstance. This
evidence is insufficient to establish the requisite changed
conditions.
The rest of Kandio’s claims on this appeal are attacks
upon the affirmance of the immigration judge’s removal decision and
the Board’s denial of her first motion to reopen (and include a
meritless attack on alleged procedural irregularities in her
proceeding), and are therefore beyond our jurisdictional purview
now.
The petition for review is denied.
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