Along v. Attorney General ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
5-2-2008
Along v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-1359
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 07-1359
_____________
ALONG, (NO NAME GIVEN),
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(BIA No. A96-263-462)
Immigration Judge: Honorable Miriam Mills
Submitted Under Third Circuit LAR 34.1(a)
March 25, 2008
Before: McKEE, RENDELL and TASHIMA*, Circuit Judges
(Filed: May 2, 2008)
OPINION OF THE COURT
__________________
* Honorable A. Wallace Tashima, Senior Judge of the United States Court of
Appeals for the Ninth Circuit, sitting by designation.
RENDELL, Circuit Judge.
Petitioner Along (“Along”) seeks review of a January 2007 decision by the Board
of Immigration Appeals (“BIA”) denying, as untimely, his motion to reopen the BIA’s
January 2006 decision to dismiss his appeal. For the following reasons, the Petition for
Review will be denied.
BACKGROUND 1
In May 2001, Along, a native and citizen of Indonesia, entered the United States
on a visitor visa. On March 29, 2003—well after his period of authorized stay had
expired (November 12, 2001)—Along filed an application for asylum, withholding of
removal, and protection under the Convention Against Torture (“CAT”), which was
referred to an Immigration Judge (“IJ”) for adjudication. On May 19, 2003, Along was
issued a Notice to Appear charging him with removability under 8 U.S.C. § 1227(a)(1)(B)
as an alien who overstayed his admission as a non-immigrant.
In removal proceedings, Along admitted removability, but requested asylum,
withholding of removal, CAT protection, and voluntary departure. In October 2004, the
IJ issued an oral decision finding Along removable as charged. The IJ concluded that
Along’s asylum application was untimely, as he failed to present evidence of
extraordinary circumstances or changed country conditions that would justify his filing
1
As we write for the benefit of the parties alone, we need not undergo a lengthy
recitation of the facts.
2
for asylum beyond the statutory one-year time period. Moreover, the IJ found that Along
had not suffered past persecution on account of his religion or ethnicity and did not
demonstrate a well-founded fear of future persecution because his family, then residing in
the Indonesian city of Pontianak, had suffered no harm on account of their ethnicity or
religion since their relocation.
In November 2005, Along appealed the IJ’s decision, and, in January 2006, the
BIA dismissed the appeal, affirming the IJ’s denial of asylum and withholding of
removal.2 After first agreeing that Along’s asylum application had not been timely filed,
the BIA next determined, within the context of Along’s claim for withholding of removal,
that the “various isolated acts reported by [Along], a number which are remote in time, do
not constitute persecution, or that he failed to establish that he faced either an
individualized risk of persecution, or that there was pattern or practice of persecution
against ethnic Chinese Indonesians and/or Christians.” (A.R. 49.) In response to Along’s
assertion that conditions in Indonesia have worsened since the occupation of Iraq by
United States forces, the BIA noted that Along had submitted “no evidence in support of
this generalized claim,” and thus found “no basis upon which a remand in this regard is
warranted.” (A.R. 49.) Along did not seek review of the BIA’s decision by this Court.
In August 2006, however—more than 90 days after the BIA dismissed Along’s
appeal—Along filed a motion to reopen with the BIA, purportedly based on changed
2
Along did not challenge the IJ’s denial of his CAT claim.
3
country conditions in Indonesia. Along attached to this motion his own affidavit and
three letters from family and friends recounting instances of violence by Muslims against
neighboring Christians in Indonesia. On January 12, 2007, the BIA denied Along’s
motion to reopen as untimely, concluding that he “has not established that he is entitled to
an exception to the filing requirements for reopening based on a claim for asylum or
withholding of removal arising from materially changed circumstances in Indonesia.”
(A.R. 2.) On February 5, 2007, Along filed a timely petition for review with this Court.
DISCUSSION
Along raises two issues on appeal. First, he contends that the BIA abused its
discretion “in ignoring the fact that the new evidence he is seeking to present constitutes
prima facie eligibility for the relief of asylum, withholding of removal, and relief under
Article III of the [CAT].” (Appellant’s Br. 6.) Second, he claims that the BIA abused its
discretion “in disallowing the opening of the case inasmuch as the requirement of
providing clear and convincing evidence that the application for asylum is filed within
one (1) year violates Petitioner’s substantive due process rights and to the equal
protection of laws.” (Id. at 3.) Neither of these issues presents a meritorious ground for
relief.
I. Motion to Reopen
We review the BIA’s denial of a motion to reopen for an abuse of discretion and
will not disturb the Board’s decision unless it is “arbitrary, irrational, or contrary to law.”
4
Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir. 2005) (internal quotation marks omitted).
As recognized above, the BIA denied Along’s motion to reopen on the basis that it
was untimely. Under the regulations, a motion to reopen typically “must be filed no later
than 90 days after the date on which the final administrative decision was rendered in the
proceeding sought to be reopened.” 8 C.F.R. § 1003.2(c)(2). An exception to the filing
requirement exists, however, if the motion seeks relief “based on changed circumstances
arising in the country [of removal], if such evidence is material and was not available and
could not have been discovered or presented at the previous hearing.” 8 C.F.R. §
1003.2(c)(3)(ii). After acknowledging the affidavit and letters that Along submitted in
support of his motion to reopen, the BIA concluded that Along was not eligible to take
advantage of this exception.
Nowhere in Along’s brief on appeal does he challenge the BIA’s finding that his
motion to reopen was technically untimely,3 nor does he assert that the evidence he
attached to his motion was “material and was not available and could not have been
discovered or presented at the previous proceeding.” 8 C.F.R.§ 1003.2(c)(3)(ii). Instead,
Along argues that “the BIA acted irrationally in ignoring the fact that the new evidence he
is seeking to present constitutes prima facie eligibility for the relief of asylum,
withholding of removal[,] and relief under Article III of the Convention Against Torture.”
3
Because the BIA issued its final administrative decision in this case on January 13,
2006, Along’s motion to reopen was due on or before April 13, 2006. Along did not file
his motion to reopen with the BIA until August 21, 2006.
5
(Appellant’s Br. 6.) But while prima facie eligibility for the requested relief is certainly
necessary for the grant of a motion to reopen, see Guo v. Ashcroft, 386 F.3d 556, 563 (3d
Cir. 2004), it is not sufficient when the motion itself is untimely.4 The regulations are
clear. When a motion to reopen based on evidence of changed country circumstances is
filed outside the 90-day window prescribed by the regulations, the motion is time-barred
unless “such evidence is material and was not available and could not have been
discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii). As Along
puts forth no argument that the evidence he presented to the BIA fits within the 90-day
exception, we need proceed no further with this aspect of his appeal.5
II. Long’s Asylum Application
The second issue Along presents for our consideration is his contention that the
one-year asylum application requirement violates his substantive due process rights and
his right to equal protection of the laws. We are without jurisdiction to entertain this
4
Even when a motion to reopen is timely filed, the BIA “has discretion to deny [that]
motion . . . even if the party moving has made out a prima facie case for relief.” 8 C.F.R.
§ 1003.2(a).
5
Had Along challenged the BIA’s ultimate finding that he did “not establish[] that he is
entitled to an exception to the filing requirements for reopening” (A.R. 2), he would have
been no more successful. As recognized above, the “new” evidence Along attached to his
motion consisted of his own affidavit and three letters from family and friends in
Indonesia. The affidavit recounted instances of violence that Along had already put
before the IJ; the letters from his relatives recounted undated instances of violence by
Muslims against Christians in the family’s home city of Pontianak; and the letter from his
friend recounted instances of violence in Jakarta (though no one from Along’s family
resided in Jakarta). Based on this evidence, we cannot conclude that the BIA’s refusal to
grant Along’s motion to reopen was an abuse of discretion.
6
aspect of his appeal, however, as the one-year asylum application requirement was not a
subject of the BIA’s January 12, 2007 decision—the only decision properly before this
Court. (See Pet. for Review (“Fnu, Along hereby petitions the Court for review of the
Order of the Board of Immigration Appeals (Decision of the Board of Immigration
Appeals) denying his appeal dated and entered on January 12, 2007.”).) Because the time
limit for seeking judicial review of the BIA’s January 2006 order has long passed,6 Along
has waived his opportunity to challenge the one-year asylum application requirement on
appeal.
CONCLUSION
For the reasons set forth above, the Petition for Review will be denied.
6
In general, an applicant for asylum or withholding of removal has 30 days in which to
file a petition for review of an order of removal. 8 U.S.C. § 1252(b)(1). The statutory
time frame for filing a petition for review in an immigration case is “mandatory and
jurisdictional.” Stone v. I.N.S., 514 U.S. 386, 405 (1995) (internal quotation marks
omitted). The filing of a motion to reopen or reconsider with the BIA does not toll the
time in which to seek judicial review of a final order of removal. Id. at 394.
7