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 2017-08

Ronald Rajo v. Jefferson Sessions , 695 F. App'x 222 ( 2017 )


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  •                            NOT FOR PUBLICATION                           FILED
UNITED STATES COURT OF APPEALS                       AUG 14 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RONALD HENKIE RAJO, ET AL.,                      No.   12-72902
Petitioners,                     Agency No. A096-351-539
A096-351-540
v.                                                         A096-351-542
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 7, 2017**
Pasadena, California
Before: CALLAHAN and OWENS, Circuit Judges, and FABER,*** District
Judge.
Petitioners Ronald Henkie Rajo, Olly Fonny Rogahang, and Oscean Swingly
Rajo (collectively, “Petitioners”), petition for review of the Board of Immigration
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable David A. Faber, United States District Judge for the
Southern District of California, sitting by designation.
Appeals’ (“BIA”) August 16, 2012 order, which denied Petitioners’ untimely
motion to reopen their applications for asylum, withholding of removal, and
Convention Against Torture (“CAT”) protection. Petitioners are Seventh Day
Adventists from Indonesia who argue that they will face persecution upon removal
because of their Christian faith. We have jurisdiction under 8 U.S.C. § 1252, and
we deny the petition for review.
We review the BIA’s denial of a motion to reopen for abuse of discretion,
and its factual determination of changed country conditions for substantial
evidence. Oyeniran v. Holder,
    672 F.3d 800
    , 806 (9th Cir. 2012); Edu v. Holder,
    624 F.3d 1137
    , 1142 (9th Cir. 2010).
1. Generally, an alien must move to reopen a denied application for asylum
or withholding of removal within 90 days of the BIA’s last order of removal.
8 U.S.C. § 1229a(c)(7)(C)(i). Petitioners’ motion to reopen was untimely because
Petitioners moved to reopen the BIA’s April 27, 2007 order of removal over four
years later, on January 10, 2012. An exception to the 90-day deadline applies if
the alien shows “changed country conditions” that now affect the alien’s eligibility
for asylum or withholding of removal.
    Id. § 1229a(c)(7)(C)(ii). 
    The changed
country conditions must be material, and the newly presented evidence must not
have been discoverable during the previous proceeding.
    Id. The new 
    evidence
must also be particular to the individual petitioners. See Tampubolon v. Holder,
2
    610 F.3d 1056
    , 1062 (9th Cir. 2010).
The BIA’s determination that the exception does not apply here was not an
abuse of discretion because Petitioners failed to present evidence of changed
country conditions that carry an “individualized risk” to themselves. See
    id. at 1061–62; 
    cf. Malty v. Ashcroft,
    381 F.3d 942
    , 945–46 (9th Cir. 2004). While
Petitioners included in their motion various news articles and expert witness
testimony showing generally worsening persecution of Christians in Indonesia,
they presented no evidence that they or their family have been targeted.
2. Petitioners’ assertion that recent Ninth Circuit case law establishing
Indonesian Christians as a disfavored group requires granting the petition is also
unavailing. Although membership in a disfavored group relaxes a petitioner’s
burden to show individualized risk, see Wakkary v. Holder,
    558 F.3d 1049
    , 1063
(9th Cir. 2009);
    Tampubolon, 610 F.3d at 1062
    , here the BIA assumed that
Petitioners were members of a disfavored group. Even under the relaxed analysis,
the BIA found that Petitioners failed to show sufficient individualized risk.
3. Petitioners also argue that the BIA abused its discretion by not expressly
considering the government’s failure to file an opposition to the motion to reopen.
But the government’s failure to file an opposition is immaterial because the BIA
denied Petitioners’ motion to reopen for not meeting substantive requirements. It
was Petitioners’ burden to present material evidence of changed country
3
conditions, Najmabadi v. Holder,
    597 F.3d 983
    , 989–90 (9th Cir. 2010), but they
did not do so. Further, the BIA’s order recognized that the government did not
oppose Petitioners’ motion.
In sum, the BIA did not abuse its discretion in denying Petitioners’ motion
to reopen.
PETITION FOR REVIEW DENIED.
4