09-4035-ag
Gunawan v. Holder
BIA
A098 642 607
A098 642 608
A098 642 609
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 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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 23 rd day of September, two thousand ten.
PRESENT:
DENNIS JACOBS,
Chief Judge,
JON O. NEWMAN,
RICHARD C. WESLEY,
Circuit Judges.
_______________________________________
HARLINA GUNAWAN, KURNIAWAN FELIX ONG,
KURNIAWAN STEVEN ONG,
Petitioners,
v. 09-4035-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONERS: Charles Christophe, New York, New
York.
FOR RESPONDENT: Tony West, Assistant Attorney General;
Luis E. Perez, Senior Litigation
Counsel; Elizabeth D. Kurlan, Trial
Attorney, Office of Immigration
Litigation, United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
review is DENIED.
Harlina Gunawan, Kurniawan Felix Ong, and Kurniawan
Steven Ong, natives and citizens of Indonesia, seek review of
an August 31, 2009, order of the BIA denying their second
motion to reopen. 1 In re Harlina Gunawan, Kurniawan Felix Ong,
Kurniawan Steven Ong, Nos. A098 642 607/608/609 (B.I.A. Aug.
31, 2009). We assume the parties’ familiarity with the
underlying facts and procedural history of this case.
We review the BIA’s denial of Gunawan’s motion to reopen
for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517
(2d Cir. 2006). An alien may file only one motion to reopen
and must do so within 90 days of the final administrative
decision. 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2).
However, there is no time or numerical limitation where the
alien establishes materially “changed country conditions
arising in the country of nationality.” 8 U.S.C. §
1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii).
1
For ease of reference, this order refers solely to the lead
petitioner, Harlina Gunawan.
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Here, the BIA did not abuse its discretion in denying
Gunawan’s second motion to reopen, as it was indisputably
untimely and number-barred.
Further, as the BIA found, the evidence Gunawan submitted
failed to demonstrate changed country conditions in Indonesia
or to overcome the immigration judge’s (“IJ”) underlying
adverse credibility determination. Because the IJ found that
Gunawan was not credible regarding her fear of persecution for
being an ethnic Chinese Protestant, the BIA reasonably
discounted the letters from her husband and father in which
they asserted that they had suffered persecution on the same
ethnic and religious grounds. See Xiao Ji Chen v. U.S. Dep’t
of Justice, 471 F.3d 315, 342 (2d Cir. 2006) (explaining that
the weight afforded to the applicant’s evidence in immigration
proceedings lies largely within the discretion of the agency);
see also Qin Wen Zheng v. Gonzales, 500 F.3d 143, 146-47 (2d
Cir. 2007); Kaur v. BIA, 413 F.3d 232, 234 (2d Cir. 2005) (per
curiam).
Moreover, contrary to Gunawan’s argument, the record does
not demonstrate that the BIA failed to consider any of the
background evidence she submitted. See Xiao Ji Chen, 471 F.3d
at 338; see also Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d
Cir. 2006). Indeed, rather than demonstrating a worsening of
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country conditions for ethnic Chinese Christians in Indonesia,
the 2007 State Department Country Report, which Gunawan cites
in her brief, states that instances of discrimination and
harassment against ethnic Chinese Indonesians have declined,
and that recent reforms have led to increased religious and
cultural freedom. Consequently, we conclude that substantial
evidence supports the BIA’s conclusion that Gunawan failed to
demonstrate changed country conditions. See Jian Hui Shao v.
Mukasey, 546 F.3d 138, 169 (2d Cir. 2008) (reviewing changed
country conditions findings for substantial evidence); see
also 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R.
§ 1003.2(c)(3)(ii).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of removal
that the Court previously granted in this petition is VACATED,
and any pending motion for a stay of removal in this petition
is DISMISSED as moot. Any pending request for oral argument in
this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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