Purba v. Barr

18-824
Purba v. Barr
BIA
A096 423 812
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall
United States Courthouse, 40 Foley Square, in the City of
New York, on the 10th day of September, two thousand twenty.
PRESENT:
ROSEMARY S. POOLER,
RAYMOND J. LOHIER, JR.,
MICHAEL H. PARK,
Circuit Judges.
_____________________________________
TUMBOR GOLDO ROY PURBA, AKA TUMBOR
G.R. PURBA,
Petitioner,
v. 18-824
NAC
WILLIAM P. BARR, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: H. Raymond Fasano, New York, NY.
FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney
General; Anthony P. Nicastro,
Assistant Director; Jonathan
Robbins, Senior Litigation
Counsel, Office of Immigration
Litigation, United States
Department of Justice, Washington,
DC.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioner Tumbor Goldo Roy Purba, a native and citizen
of Indonesia, seeks review of a February 27, 2018, decision
of the BIA denying his motion to reopen his removal
proceedings. In re Tumbor Goldo Roy Purba, No. A 096 423 812
(B.I.A. Feb. 27, 2018). We assume the parties’ familiarity
with the underlying facts and procedural history.
We review the denial of a motion to reopen for abuse of
discretion and the BIA’s country conditions determination for
substantial evidence. See Jian Hui Shao v. Mukasey, 546 F.3d
138, 168-69 (2d Cir. 2008). An alien seeking to reopen may
file one motion to reopen no later than 90 days after the
final administrative decision. 8 U.S.C. § 1229a(c)(7)(A),
(C)(i); 8 C.F.R. § 1003.2(c)(2). Purba filed his 2017 motion
to reopen more than a decade after the BIA’s final
administrative decision. However, the 90-day time limitation
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does not apply where the motion seeks asylum “based on changed
country conditions arising in the country of nationality or
the country to which removal has been ordered, if such
evidence is material and was not available and would not have
been discovered or presented at the previous proceedings.”
8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R.
§ 1003.2(c)(3)(ii). “In determining whether evidence
accompanying a motion to reopen demonstrates a material
change in country conditions that would justify reopening,
[the agency] compare[s] the evidence of country conditions
submitted with the motion to those that existed at the time
of the merits hearing below.” In re S-Y-G-, 24 I. & N. Dec.
247, 253 (BIA 2007). Substantial evidence supports the BIA’s
conclusion that Purba did not establish a material change in
conditions for Christians in Indonesia.
As the BIA found, the country conditions evidence reveals
that discrimination against Christians has been a
longstanding problem. The evidence presented in the record
at the time of Purba’s hearing before an immigration judge in
2004 reported the mistreatment of minority religions, the
existence of political parties advocating for nationwide
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adoption of Sharia law, limited freedom of expression
regarding religious differences, and instances of religiously
motivated extremism and violence. The evidence Purba
submitted in 2017, including State Department Country Reports
for Indonesia, news articles, and scholarly pieces, described
discrimination against minority religions, campaigns and
political support for adoption of Sharia law, restrictions on
religious speech, and several instances of extremism and
violence. Accordingly, the evidence reflected conditions for
Christians similar to those at the time of the hearing.
Because the country conditions evidence supports the BIA’s
conclusion that Purba failed to demonstrate a material
worsening of conditions for Christians in Indonesia as needed
to bypass the 90-day filing deadline for his motion, the BIA
did not abuse its discretion in denying his motion to reopen.
See 8 U.S.C. § 1229a(c)(7)(C)(i), (ii).
While the BIA has regulatory authority to reopen
proceedings sua sponte despite the time bar, 8 C.F.R.
§ 1003.2(a), we lack jurisdiction to review this “entirely
discretionary” determination, see Ali v. Gonzales, 448 F.3d
515, 518 (2d Cir. 2006). To the extent that Purba contends
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that the BIA misstated the record, we find no misperception
of the law that would allow remand. See Mahmood v. Holder,
570 F.3d 466, 469 (2d Cir. 2009) (“[W]here the [BIA] may have
declined to exercise its sua sponte authority because it
misperceived the legal background and thought, incorrectly,
that a reopening would necessarily fail, remand to the [BIA]
for reconsideration in view of the correct law is
appropriate.”). The BIA did not state that reopening would
necessarily fail; instead, it simply found that Purba had not
established exceptional circumstances to warrant sua sponte
reopening. And it did not misperceive the law in connection
with Purba’s pending visa petition because Purba may pursue
an unlawful presence waiver without first reopening his
removal proceedings. See 8 C.F.R. § 212.2(b)(1); USCIS,
Provisional Unlawful Presence Waivers, available at
https://www.uscis.gov/family/family-us-
citizens/provisional-unlawful-presence-waivers (“If you have
a final order of removal . . . , you can only obtain a
provisional unlawful presence waiver if you have applied for,
and we have already approved, Form I-212, Application for
Permission to Reapply for Admission into the United States
5
After Deportation or Removal, at the time you file Form I-
601A.”).
For the foregoing reasons, the petition for review is
DENIED. All pending motions and applications are DENIED and
stays VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe,
Clerk of Court
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