Charles Wongso v. Atty Gen USA

ALD-083 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-2716
___________
CHARLES WONGSO;
SWANDAJANI,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency Nos. A096-262-256, A096-262-257)
Immigration Judge: Honorable Donald Vincent Ferlise
____________________________________
Submitted on the Respondent’s Motion for Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
January 20, 2012
Before: SLOVITER, FISHER AND NYGAARD, Circuit Judges
(Opinion filed: January 30, 2012)
___________
OPINION
___________
PER CURIAM
Petitioners Charles Wongso and Swandajani (first name unknown) petition for
review of an order of the Board of Immigration Appeals (BIA) denying their motion to
reopen. The government has filed a “Motion for Summary Disposition,” arguing that the
petitioners’ case presents no substantial question. We will grant the government’s
motion, which we will treat as a motion for summary action, and deny the petition for
review.
The petitioners are citizens of Indonesia. In 2003, the Department of Homeland
Security charged them with being removable under section 237(a)(1)(B) of the
Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(B), as aliens who were present in
the United States in violation of law. The petitioners conceded that they were removable
as charged. However, they applied for withholding of removal and protection under the
Convention Against Torture (CAT). 1 They claimed that they had been persecuted and
feared future persecution due to their Christianity and Chinese ethnicity.
On May 2, 2005, an Immigration Judge (IJ) denied all relief to petitioners. The IJ
concluded that they had neither suffered past persecution nor showed that they were
likely to be persecuted in the future. As to the claim of future persecution, the IJ ruled
that they had failed to establish either that they would be individually singled out for
persecution or that there is a pattern or practice in Indonesia of persecuting Christians of
Chinese background. Accordingly, the IJ denied their withholding-of-removal claim.
The IJ concluded that the petitioners were not entitled to CAT relief because they had not
shown that they would be tortured in Indonesia.
The petitioners then appealed to the BIA, which dismissed the appeal on July 25,
2007, for essentially the reasons set forth in the IJ’s decision. They filed a petition for
1
The petitioners originally submitted, but then withdrew, an application for asylum.
2
review in this Court, which the Court denied. See Wongso v. Att’y Gen., 283 F. App’x
918 (3d Cir. 2008).
In September 2010, petitioners filed the motion that is at issue here — a motion to
reopen. In support of the motion, the petitioners presented six news articles and the 2009
Department of State Human Rights Report for Indonesia. They claimed that these
documents showed that the country conditions in Indonesia had changed for the worse.
Based on this new evidence, they argued, they were entitled to withholding of removal
and CAT relief.
The BIA denied the motion to reopen. It held that the petitioners’ evidence was
cumulative of the evidence that they had previously presented and did not establish their
prima facie eligibility for relief. The petitioners then filed a petition for review in this
Court.
We have jurisdiction under 8 U.S.C. § 1252 to review the BIA’s denial of the
motion to reopen. Where the BIA denies a motion to reopen for failure to establish a
prima facie case, the Court will review the BIA’s ultimate decision for abuse of
discretion and its underlying findings of fact for substantial evidence. See Sevoian v.
Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002); see also INS v. Abudu, 485 U.S. 94, 105
(1988). To make a prima facie showing, “the alien must produce objective evidence that,
when considered together with the evidence of record, shows a reasonable likelihood that
he is entitled to relief.” Huang v. Att’y Gen., 620 F.3d 372, 389 (3d Cir. 2010).
3
In their brief, the petitioners argue that the BIA “did not consider the additional
materials and new evidence” that they submitted. We disagree. While the agency did not
expound, at length, on the new material, it did both acknowledge the submissions and
explain why, in aggregate, they were lacking. The BIA need not “write an exegesis” on
every contention; rather, its “analysis merely must be adequate to allow for meaningful
review of [its] decision.” Toussaint v. Att’y Gen., 455 F.3d 409, 414 (3d Cir. 2006)
(internal quotation marks omitted). The BIA’s analysis here comports with that standard.
On the merits, we conclude the BIA did not err in determining that the petitioners
failed to establish their prima facie eligibility for relief. Contrary to the petitioners’
arguments, the 2009 State Department Report does not help their cause. Cf. Wong v.
Att’y Gen., 539 F.3d 225, 234 (3d Cir. 2008) (noting that “more recent State Department
reports from 2005 to 2007 document similar or improved treatment of Chinese Christians
in Indonesia” since 2004). Rather, as the government points out, the report states that
Indonesia’s government “generally respected” Indonesians’ constitutional right “to
worship according to his or her own religion or belief.” Further, although the petitioners’
articles establish that isolated attacks against Christians in Indonesia have continued,
these scattered articles do not show that there is a reasonable likelihood that the
petitioners are entitled to withholding of removal or CAT relief. See Lie v. Ashcroft, 396
F.3d 530, 537 (3d Cir. 2005) (explaining that applicant seeking relief due to pattern or
practice of persecution must establish “systemic, pervasive, or organized” persecution
(internal quotations omitted); Tarrawally v. Ashcroft, 338 F.3d 180, 187-88 (3d Cir.
4
2003) (explaining that to prevail on CAT claim, the applicant must establish “that it is
more likely than not that he or she would be tortured if removed to the proposed country
of removal” (internal quotation marks omitted)); see generally Zubeda v. Ashcroft, 333
F.3d 463, 477-78 (3d Cir. 2003). Therefore, the BIA did not abuse its discretion in
denying the petitioners’ motion to reopen.
Accordingly, we grant the government’s motion for summary action and will deny
the petition for review.
5