No Given Name Deny v. Attorney General ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
1-9-2008
Deny v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-3416
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-3416
NO GIVEN NAME DENY;
NO GIVEN NAME IRWANTO,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES
_____________
On Petition for Review of a Final Order of the
Board of Immigration Appeals
Agency No. A96-253-558, 559
Immigration Judge: Charles Honeyman
____________
Submitted Under Third Circuit L.A.R. 34.1(a)
on January 8, 2008
____________
Before: FISHER, HARDIMAN AND ALDISERT, Circuit Judges
(Filed: January 9, 2008)
OPINION
ALDISERT, Circuit Judge
No Given Name Deny and No Given Name Irwanto petition this Court for review
of the Board of Immigration Appeal’s denial of their motion to reopen their removal
proceedings. On January 11, 2006, the BIA adopted and affirmed the Immigration
Judge’s denial of their applications for asylum, withholding of removal and relief under
the Convention Against Torture. Petitioners did not file a petition for review of the BIA’s
decision in this Court. On April 6, 2006, Petitioners filed a motion to reopen their
immigration proceedings with the BIA, and the BIA denied the motion on June 15, 2006.
We will deny the petition for review.
We review the BIA’s denial of the motion to reopen for abuse of discretion. INS v.
Doherty, 502 U.S. 314, 323 (1992). This Court disfavors motions to reopen immigration
proceedings “because ‘as a general matter, every delay works to the advantage of the
[removable] alien who wishes merely to remain in the United States.’” Lu v. Ashcroft,
259 F.3d 127, 131 (3d Cir. 2001) (quoting Doherty, 502 U.S. at 323). The Supreme Court
has noted that the granting of “such motions too freely will permit endless delays of
[removal] by aliens creative and fertile enough to continuously produce new and material
facts sufficient to establish a prima facie case” for relief. INS v. Abudu, 485 U.S. 94, 108
(1988). Accordingly, the BIA’s denial of a motion to reopen will be upheld unless it was
arbitrary, irrational or contrary to law. Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004).
In their motion to reopen, Petitioners state that various documents detailing the
worsening situation for Chinese Christians in Indonesia were attached to it. The BIA,
however, did not receive such documents and therefore did not abuse its discretion by not
considering those documents. Petitioners also submitted this Court’s decision in
Sukwanputra v. Gonzales, 434 F.3d 627 (3d Cir. 2006), as new evidence of a pattern of
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persecution in Indonesia. The BIA did not abuse its discretion in determining that
Sukwanputra was not persuasive. In Sukwanputra, this Court specifically stated that it
was “not hold[ing] that a pattern or practice of persecution in Indonesia in fact exists.” Id.
at 637 n.10. Therefore the BIA did not abuse its discretion in declining to view
Sukwanputra as new evidence warranting the reopening of Petitioners’ immigration
proceedings.
We conclude that the BIA properly denied Petitioners’ motion to reopen because
Petitioners have not met their heavy evidentiary burden. The BIA determined that the
outcome of Petitioners’ removal proceedings would be the same if the proceedings were
reopened and the proffered new evidence presented. See Matter of Coelho, 20 I. & N.
Dec. 464, 473 (BIA 1992) (“[T]he Board ordinarily will not consider a discretionary grant
of a motion to remand unless the moving party meets a ‘heavy burden’ and presents
evidence of such a nature that the Board is satisfied that if proceedings before the
immigration judge were reopened, with all the attendant delays, the new evidence offered
would likely change the result in the case.”).
We have considered all of the contentions raised by the parties and conclude that
no further discussion is necessary.
Accordingly, we will deny the petition for review of the BIA’s decision not to
reopen Petitioners’ immigration proceedings.
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