FILED
NOT FOR PUBLICATION AUG 06 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
AGNES ELIESJEAN ZAINI, No. 07-72310
Petitioner, Agency No. A071-808-749
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
AGNES ELIESJEAN ZAINI, No. 09-72337
Petitioner, Agency No. A071-808-749
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 3, 2012
Submission Vacated December 18, 2012
Submitted August 6, 2013
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Pasadena, California
Before: PREGERSON, PAEZ, and HURWITZ, Circuit Judges.
Petitioner, Agnes Eliesjean Zaini, petitions for review of the Board of
Immigration Appeals (BIA)’s orders denying her motion to reopen, motion to
reconsider, and motion to reopen sua sponte. We deny the petition in part and
dismiss in part.
Zaini is an ethnically Chinese citizen of Indonesia and a practicing Christian.
In 1999, she applied for asylum, withholding of removal, and protection under the
Convention Against Torture. Her applications were denied, and she was granted
voluntary departure. Zaini v. Ashcroft, 113 F. App’x 785, 786-87 (9th Cir. 2004).
In December 2006, Zaini filed an Emergency Motion to Reopen and Remand &
Motion for Stay before the BIA. She claimed that she was eligible for asylum and
withholding of removal on the basis of changed country conditions in Indonesia, as
well as for adjustment of status as a beneficiary of her U.S. citizen son. The BIA
denied the motion in May 2007. Zaini then filed a Motion to Reconsider or in the
Alternative Motion to Reopen Sua Sponte in January 2008, again arguing that she
qualified for adjustment of status through her son. The BIA denied those
alternative motions in June 2009. Zaini timely petitioned for review of the BIA’s
orders, which we consolidated for review.
1. The BIA did not abuse its discretion in denying Zaini’s motion to reopen
to apply for asylum and withholding of removal. Because Zaini did not file her
motion to reopen within 90 days of the final order of removal, she had to submit
evidence of changed country conditions that was “material and was not available
and would not have been discovered or presented at the previous proceeding.” 8
U.S.C. § 1229a(c)(7)(C)(ii). The BIA’s conclusion that Zaini failed to make such a
showing was supported by substantial evidence in the record. See Najmabadi v.
Holder, 597 F.3d 983, 989-90 (9th Cir. 2010).1
2. The BIA also did not abuse it discretion in denying Zaini’s motion to
reopen to seek adjustment of status. Where there is “no dispute that [the] motion to
reopen was filed after the period for voluntary departure [has] elapsed,” the BIA is
“not simply correct to deny the motion [to reopen],” but actually “compelled to do
so” under 8 U.S.C. § 1229c(d)(1)(B). Granados-Oseguera v. Mukasey, 546 F.3d
1011, 1015 (9th Cir. 2008) (per curiam). This is true even if, as Zaini argues, her
appeal of the IJ’s decision constructively withdrew her voluntary departure. See,
e.g., Toufighi v. Mukasey, 538 F.3d 988, 993 (9th Cir. 2007) (explaining that
1
Zaini also argues that the BIA erred by stating that she had “failed to
submit the required asylum application.” See 8 C.F.R § 1003.2(c)(1). Whether or
not this statement was made in error, it was not one of the bases on which the BIA
denied her motion to reopen.
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because Toufighi missed the ninety-day deadline to file a motion to reopen,
“Toufighi’s motion to reopen to apply for adjustment of status was properly denied
regardless of whether the ten-year bar on discretionary relief for failing to
voluntarily depart applies to him.”). The BIA thus did not abuse its discretion in
denying the motion to reopen on this ground.
3. The BIA did not, as Zaini alleges, commit a due process violation by
denying her motion to reopen without considering all the evidence. An alien
seeking to establish such a violation must overcome the presumption that the BIA
has reviewed the record. Larita-Martinez v. I.N.S., 220 F.3d 1092, 1096 (9th Cir.
2000). Zaini fails to do so here. Contrary to her argument, the BIA did address the
testimony of Zaini’s expert witness, but concluded that it did not establish a pattern
or practice of persecution in Indonesia. The BIA was not required to engage in a
lengthy explanation for this conclusion. See Najmabadi, 597 F.3d at 990; Feng
Gui Lin v. Holder, 588 F.3d 981, 987 (9th Cir. 2009). Furthermore, Zaini’s
argument that the BIA applied a “policy to deny motions to reopen” to her case is
without support in the record.
4. The BIA also did not abuse its discretion in denying Zaini’s motion to
reconsider. First, the motion was untimely. See 8 U.S.C. § 1229a(c)(6)(B).
Second, the BIA did not err in denying the motion on the ground that Dada v.
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Mukasey, 554 U.S. 1 (2008), has no impact on Zaini’s case. See 8 U.S.C. §
1229a(c)(6)(C) (“The motion shall specify the errors of law or fact in the previous
order and shall be supported by pertinent authority”). In Dada, the Supreme Court
held that “[an] alien must be permitted an opportunity to withdraw [her] motion for
voluntary departure, provided the request is made before the departure period
expires.” 554 U.S. at 5-6. But Zaini did not request to withdraw her request for
voluntary departure before the departure period had ended. Furthermore, her
argument that she “constructively withdrew” her request for voluntary departure by
appealing to the BIA in 2002 is negated by the fact that our court subsequently
found that her “motion for stay of removal included a timely request for stay of
voluntary departure,” and granted her the opportunity to voluntarily depart. Zaini,
113 F. App’x at 787. It was therefore not an abuse of discretion for the BIA to
deny her motion to reconsider.
5. Finally, Zaini argues that even if her motion to reconsider was untimely,
the BIA should have granted her motion to reopen sua sponte. We reject this
argument because we do not have jurisdiction to review the denial of a motion to
reopen deportation proceedings sua sponte. Toufighi, 538 F.3d at 993 n.8; Malty v.
Ashcroft, 381 F.3d 942, 945 n.1 (9th Cir. 2004). We therefore dismiss this
argument.
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PETITION DENIED in part and DISMISSED in part.
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