Gunawan Suyanto Djie v. Attorney General United States , 496 F. App'x 215 ( 2012 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 12-1740
____________
GUNAWAN SUYANTO DJIE,
Petitioner,
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
__________________________________
On a Petition For Review of an Order
of the Board of Immigration Appeals
(Agency No. A096-258-019)
Immigration Judge: Miriam K. Mills
__________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 5, 2012
Before: AMBRO, FISHER and GARTH, Circuit Judges
(Opinion filed: September 6, 2012)
____________
OPINION
____________
PER CURIAM
Gunawan Suyanto Djie (“Djie”) petitions for review of the Board of Immigration
Appeals’ final order of removal. For the reasons that follow, we will deny the petition for
review.
Djie, an ethnically Chinese Christian citizen of Indonesia, was admitted on a
visitor’s visa in October, 2001, and overstayed. He sought asylum, claiming persecution
on the basis of his ethnicity and religion. His application for asylum, withholding of
removal, and for protection under the Convention Against Torture was denied by an
Immigration Judge after a merits hearing on May 18, 2004. The Board of Immigration
Appeals adopted and affirmed the IJ’s decision on July 28, 2005. Djie did not petition for
review of this decision.
On September 6, 2011, more than six years after the Board’s final order of
removal, Djie filed an untimely motion to reopen with the Board, in which he claimed
that he had new evidence – from 2010 and 2011 – of worsening conditions in Indonesia
for Chinese Christians. Djie sought an exception to the time requirement for motions to
reopen on this basis, and he sought to raise a “pattern or practice” argument in a new
asylum application. In support of his motion to reopen, Djie submitted seven news
articles, several of which addressed an attack on Christian churches by Muslim “mobs” in
February, 2011 in central Java. Another article from the Christianpost.com described
attacks on Christian churches in 2010.
On February 16, 2012, the Board denied the motion to reopen. The Board held
that the motion was untimely filed and that Djie had failed to demonstrate materially
changed country conditions in Indonesia that would excuse the untimeliness of his
motion. Alternatively, the Board determined that, even if the motion had been timely
filed, the articles Djie submitted would not change the result even if his case were to be
reopened, see Matter of Coelho, 20 I. & N. Dec. 464, 471-73 (BIA 1992). Noting that
Djie had also sought to have the proceedings remanded to the Immigration Judge to
determine whether a pattern or practice of persecution against Chinese Christians exists
in Indonesia, the Board reiterated that the motion to reopen was untimely filed and
further noted in the alternative that the evidence submitted was insufficient because it did
2
not show systematic, pervasive or organized persecution, or that the acts committed
against Christians or Christian interests were committed by the Indonesian government or
forces the government is unable or unwilling to control, see Sukwanputra v. Gonzales,
434 F.3d 627, 637 (3d Cir. 2006); Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir. 2005).
Djie timely petitions for review. We have jurisdiction under 8 U.S.C. § 1252(a),
(b)(1) over the Board’s February 16, 2012 decision.1
We will deny the petition for review. Djie’s Informal Brief is devoted exclusively
to arguing that the Board’s July 28, 2005 decision should be vacated and the matter
remanded to the Immigration Judge for reconsideration of his original asylum
application. We lack jurisdiction over the Board’s July 28, 2005 decision. Djie failed to
file his petition for review within 30 days of this decision, as required by 8 U.S.C. §
1252(b)(1). The time limit for filing a petition for review is mandatory and jurisdictional.
See McAllister v. Att’y Gen. of U.S., 444 F.3d 178, 185 (3d Cir. 2006). Djie had 30 days
after July 28, 2005 in which to file, and instead he filed a petition for review on March
19, 2012 of the Board’s denial of his motion to reopen.
Although Djie failed to address the Board’s denial of his motion to reopen in his
Informal Brief, and he has thus waived any issues relating to it, see Bradley v. Att’y Gen.
of U.S., 603 F.3d 235, 243 n.8 (3d Cir. 2010), it does not appear to us from the record
that the Board abused its discretion in denying his motion to reopen. Immigration &
Naturalization Serv. v. Abudu, 485 U.S. 94, 105 (1988). Under the abuse of discretion
1
Prior to briefing, Djie filed a motion to withdraw his petition for review, apparently
hoping to join in one filed separately by his wife at C.A. No. 12-1743 relating to her
removal proceedings. We denied the motion to withdraw. Djie’s and his wife’s
immigration proceedings were not consolidated before the agency, and we have since
dismissed her petition for review for lack of jurisdiction as untimely filed.
3
standard, we will not disturb the Board’s decision unless it is arbitrary, irrational, or
contrary to the law. See Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004). We uphold
the Board’s factual determinations underlying the denial of the motion to reopen if they
are “supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” Zheng v. Att’y Gen. of the U.S., 549 F.3d 260, 266 (3d Cir.
2008) (quoting Immigration & Naturalization Serv. v. Elias-Zacarias, 502 U.S. 478, 481
(1992)).
A party may file only one motion to reopen and such motion must be filed no later
than 90 days after the date of the removal order. 8 C.F.R. § 1003.2(c)(2); 8 U.S.C. §
1229a(c)(7)(C)(i). Djie’s motion to reopen, filed more than six years after the Board’s
July 25, 2005 decision, was untimely and thus was properly denied on that basis. The 90-
day time limitation does not apply if the alien seeks reopening “based on changed
circumstances arising in the country of nationality or in the country to which deportation
has been ordered, if such evidence is material and was not available and could not have
been discovered or presented at the previous hearing.” Id. at § 1003.2(c)(3)(ii). See also
8 U.S.C. § 1229a(c)(7)(C)(ii). The Board considered Djie’s news reports relating to
events occurring in Indonesia in 2010 and 2011. Djie’s articles show that the
longstanding animosity between Muslims and Christians in parts of Indonesia is a
continuing problem, but they do not establish that conditions have worsened since Djie’s
removal hearing in 2004. Accordingly, we see no basis for concluding that the Board
abused its discretion in determining that Djie did not qualify for the changed country
4
conditions exception to the time requirement for filing a motion to reopen, see Abudu,
485 U.S. at 105; Guo, 386 F.3d at 562.2
For the foregoing reasons, we will deny the petition for review.
2
Because Djie’s motion to reopen was untimely filed and he did not qualify for the
changed country conditions exception, and because he failed to argue any issues relating
to the Board’s denial of his motion to reopen, we need not comment on the Board’s
alternative determinations that the articles Djie submitted with his motion to reopen
would not change the result in his case, and were insufficient to show systematic,
pervasive or organized persecution by the Indonesian government, see Sukwanputra, 434
F.3d at 637; Lie, 396 F.3d at 537.
5