United States Court of Appeals
For the First Circuit
No. 07-1167
LIU LIE TJONG,
Petitioner,
v.
MICHAEL B. MUKASEY, ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Circuit Judge,
Campbell and Stahl, Senior Circuit Judges.
Yan Wang on brief for petitioner.
Peter D. Keisler, Assistant Attorney General, Civil Division,
Michelle LaTour, Assistant Director, and Nairi M. Simonian, Trial
Attorney, Office of Immigration Litigation, on brief for
respondent.
November 29, 2007
CAMPBELL, Senior Circuit Judge. Petitioner Liu Lie
Tjong, a native and citizen of Indonesia, petitions for review of
a December 29, 2006 final order of removal issued by the Board of
Immigration Appeals ("Board" or "BIA") denying his second motion to
reopen his removal proceedings.
In proceedings before the immigration judge ("IJ"), Tjong
admitted the factual allegations against him and conceded
removability. As relief from removal, Tjong requested asylum,
withholding of removal, and protection under the regulations
implementing the United Nations Convention Against Torture ("CAT").
Tjong's claims for relief and protection from removal were based on
allegations that he was, and would be, persecuted in Indonesia
based on his ethnicity (Chinese) and his religion (Christian).
After a merits hearing on March 15, 2005, the IJ denied all relief
from removal, except for a grant of a brief voluntary departure
period. Tjong appealed to the Board from the IJ's decision, and,
on June 26, the Board dismissed his appeal. He did not petition
this court for review but instead moved the Board on July 25, 2006,
to reconsider and reopen. The Board denied that motion on August
30, 2006. Tjong then filed a second motion to reopen on October
27, 2006, which was denied on December 29, 2006. In denying the
second motion, the Board noted that multiple motions of this kind
were ordinarily not allowed, 8 C.F.R. § 1003.2(c)(2); 8 U.S.C. §
1229a(c)(7)(A); (c)(7)(C)(i), and that Tjong had not met his burden
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to demonstrate that reopening was warranted under the exception to
the rule. See 8 C.F.R. § 1003.2(c)(3)(ii). The present review
petition was then brought in this court.
We review the Board's ruling on a motion to reopen only
for abuse of discretion. INS v. Doherty, 502 U.S. 314, 323-24
(1992). We must affirm the decision "unless it was made 'without
a rational explanation, inexplicably departed from established
policies, or rested on an impermissible basis.'" LeBlanc v. INS,
715 F.2d 685, 693 (1st Cir. 1983) (citation omitted). This
standard of review poses an extremely high barrier, and we find no
abuse of discretion.
In ruling originally on Tjong's claims, the IJ found that
Tjong was ineligible for asylum because his application for asylum
was untimely under 8 U.S.C. § 1158(a)(2)(B) and because no changed
or extraordinary circumstances had been shown excusing him for
filing late. 8 U.S.C. § 1158(a)(2)(D). The IJ also ruled
adversely to the merits of Tjong's claims, holding he had not met
his burden for withholding of removal because he did not establish
it to be more likely than not if returned to Indonesia he will be
targeted for harm on account of race, religion, membership in a
particular social group, nationality, or political opinion.
After the Board affirmed the IJ, Tjong moved the Board to
reconsider and reopen, submitting additional supporting evidence,
but the Board rejected his motions. It found no error in its
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initial decision, and no basis in the new evidence for waiving the
one-year asylum filing requirement that Tjong had earlier failed to
meet. The Board also determined that Tjong's and his attorney's
affidavits, along with the State Department's April 2006 travel
warning, were insufficient to establish individual risk of
persecution or torture.
Following Tjong's present second motion to reopen with
accompanying new evidence, asserting changed country conditions and
a pattern and practice of persecution against Chinese and
Christians, the Board ruled that certain of the allegedly new
evidence was not in fact new, as it was available at the time of
the hearing before the IJ. The rest of the evidence, the Board
concluded, fell short of meeting the "[h]eavy evidentiary burden
relevant to his reiterated claims," being mainly only generalized
background information. The Board also declined to reopen sua
sponte.
None of the Board's rulings were made without rational
explanation, nor do they reflect an inexplicable departure from
established policies. Neither do we find them to rest on some
impermissible basis. LeBlanc, 715 F.2d at 693. We accordingly
deny the petition for review.
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