Dewi v. Lynch ( 2015 )

14-844
Dewi v. Lynch
BIA
A099 686 953
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL
APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING
TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 5th day of May, two thousand fifteen.
5
6 PRESENT:
7 RALPH K. WINTER,
8 GUIDO CALABRESI,
9 DENNY CHIN,
10 Circuit Judges.
11 _____________________________________
12
13 NILA SARI DEWI,
14 Petitioner,
15
16 v. 14-844
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,*
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Thomas V. Massucci, New York, New
24 York.
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Loretta E. Lynch is automatically
substituted for former Attorney General Eric H. Holder, Jr.
1 FOR RESPONDENT: Joyce R. Branda, Acting Assistant
2 Attorney General; Kohsei Ugumori,
3 Senior Litigation Counsel; David
4 Schor, Trial Attorney, Office of
5 Immigration Litigation, United
6 States Department of Justice,
7 Washington, D.C.
8
9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review
12 is DENIED.
13 Petitioner Nila Sari Dewi, a native and citizen of
14 Indonesia, seeks review of a February 28, 2014, decision of
15 the BIA denying her motion to reopen. In re Nila Sari Dewi,
16 No. A099 686 953 (B.I.A. Feb. 28, 2014). We assume the
17 parties’ familiarity with the underlying facts and
18 procedural history in this case.
19 We review the BIA’s denial of Dewi’s motion to reopen
20 for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517
21 (2d Cir. 2006) (per curiam). The agency abuses its
22 discretion if its decision “provides no rational
23 explanation, inexplicably departs from established policies,
24 is devoid of any reasoning, or contains only summary or
2
1 conclusory statements.” Ke Khen Zhao v. U.S. Dep’t of
2 Justice, 265 F.3d 83, 93 (2d Cir. 2001) (internal citations
3 omitted).
4 There is no dispute that Dewi’s December 2013 motion to
5 reopen is untimely and number barred because the BIA issued
6 a final order of removal in 2010 and it was Dewi’s second
7 motion. 8 U.S.C. § 1229a(c)(7)(A) (allowing one motion to
8 reopen), (C)(i) (requiring motion to be filed within 90 days
9 of final administrative order); 8 C.F.R. § 1003.2(c)(2)
10 (same). Although the time and number limitations do not
11 apply if the motion “is based on changed country conditions
12 arising in the country of nationality or the country to
13 which removal has been ordered, if such evidence is material
14 and was not available and would not have been discovered or
15 presented at the previous proceeding,” 8 U.S.C.
16 § 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii),
17 the BIA reasonably concluded that Dewi failed to show such a
18 change.
19 Dewi challenges the BIA’s conclusion that she failed to
20 demonstrate worsened conditions in Indonesia. The expert
3
1 affidavit from Dr. Jeffrey Winters states that Indonesia has
2 seen a rise in violent attacks on Christians and that the
3 government is unwilling to prevent these attacks. However,
4 much of the affidavit is devoted to discussion of events
5 prior to Dewi’s 2009 merits hearing. This evidence was
6 therefore available at that hearing and is not new evidence
7 or evidence of any change. 8 U.S.C. § 1229a(c)(7)(C)(ii);
8 Matter of S-Y-G-, 24 I. & N. Dec. 247, 253 (BIA 2007).
9 Another portion is devoted to attacks on the Adhmadiyah, a
10 minority sect of Islam to which Dewi does not belong, and is
11 therefore not material to Dewi’s claim. 8 U.S.C. §
12 1229a(c)(7)(C)(ii). While the affidavit describes several
13 incidents of religious discrimination and violence in 2009
14 and 2010, as well as an uptick in violence between 2010 and
15 2012, the BIA did not err in finding these isolated
16 incidents insufficient to show changed conditions; Dewi
17 submitted voluminous evidence of discrimination, threats,
18 and violence against Christians at her merits hearing.
19 Norani v. Gonzales, 451 F.3d 292, 294 (2d Cir. 2006)
20 (requiring new evidence on motion to reopen); Matter of S-Y-
4
1 G-, 24 I. & N. Dec. at 257 (requiring comparison of
2 conditions at time of hearing with those at time of motion).
3 Moreover, while Dewi argues that the BIA failed to
4 consider this evidence in detail, we do not require the
5 agency to “expressly parse or refute on the record” each
6 individual piece of evidence. Xiao Ji Chen v. U.S. Dep’t of
7 Justice, 471 F.3d 315, 338 n.17 (2d Cir. 2006). Nor is Dewi
8 correct that the agency was required to give great weight to
9 Dr. Winters’s affidavit because of his expertise. Id. at
10 342. Because the BIA gave adequate consideration to Dewi’s
11 evidence and reasonably found that it did not show a
12 material change in conditions, the agency did not abuse its
13 discretion in denying Dewi’s untimely and number barred
14 motion. Ali, 448 F.3d at 517.
15 For the foregoing reasons, the petition for review is
16 DENIED. As we have completed our review, any stay of
17 removal that the Court previously granted in this petition
18 is VACATED, and any pending motion for a stay of removal in
19 this petition is DISMISSED as moot. Any pending request for
20 oral argument in this petition is DENIED in accordance with
5
1 Federal Rule of Appellate Procedure 34(a)(2), and Second
2 Circuit Local Rule 34.1(b).
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
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