12-4818
Gunawan v. Holder
BIA
A089 254 179/180
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
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IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
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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 24th day of April, two thousand fourteen.
PRESENT:
PETER W. HALL,
GERARD E. LYNCH,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________
RE INA GUNAWAN, IRSAN SUTANTO,
Petitioners,
12-4818
v. NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Joshua Bardavid, New York, New York.
FOR RESPONDENT: Stuart F. Delery, Acting Assistant
Attorney General; Terri J. Scadron,
Assistant Director; Aaron D. Nelson,
Trial Attorney, Office of
Immigration Litigation, Civil
Division, 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.
Petitioners Re Ina Gunawan and Irsan Sutanto, natives
and citizens of Indonesia, seek review of the BIA’s November
16, 2012 decision denying their motion to reopen. In re Re
Ina Gunawan, Irsan Sutanto, Nos. A089 254 179/180 (B.I.A.
Nov. 16, 2012). We assume the parties’ familiarity with the
underlying facts and procedural history of the case.
The BIA’s denial of Petitioners’ motion to reopen as
untimely was not an abuse of discretion. See Ali v.
Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (per curiam).
There is no dispute that Petitioners’ July 2012 motion was
untimely, as the BIA issued the final administrative order
in April 2011. See 8 U.S.C. § 1229a(c)(7)(C)(i) (providing
90-day period to file for reopening); 8 C.F.R.
§ 1003.2(c)(2) (same). However, there is no time limitation
for filing a motion to reopen if it “is 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
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proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also
8 C.F.R. § 1003.2(c)(3)(ii). As the BIA concluded, the
Petitioners’ evidence failed to establish changed conditions
for ethnic Chinese Christians in Indonesia.
The BIA reasonably found that despite the slight
increase in the reported number of religiously-motivated
acts of violence, there was no significant change in the
type of attacks (including the destruction and forced
closure of Christian churches) or the sporadic nature of the
incidents of religious violence. See Jian Hui Shao v.
Mukasey, 546 F.3d 138, 169 (2d Cir. 2008) (reviewing the
BIA’s factual findings under the substantial evidence
standard). Given that attacks against Christians remained
sporadic and concentrated in a few regions, and the
Indonesian government both respected religious freedom and
prosecuted perpetrators of religious violence, the BIA
reasonably found that any change was not material. See 8
C.F.R. § 1003.2(c)(3)(ii); Santoso v. Holder, 580 F.3d 110,
111-12 (2d Cir. 2009) (upholding agency’s rejection of
pattern or practice claim when background materials noted
only sporadic, localized religious violence in some of the
6,000 inhabited islands of Indonesia); Rizal v. Gonzales,
442 F.3d 84, 92 (2d Cir. 2006) (noting that asylum applicant
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alleging persecution at the hands of non-state actors must
demonstrate that government is unwilling or unable to
control those actors).
Because the evidence Petitioners submitted was
insufficient to establish a change in conditions in
Indonesia since the time of their hearing, the BIA did not
abuse its discretion in denying their motion as untimely.
See 8 U.S.C. § 1229a(c)(7)(C)(i), (ii); 8 C.F.R.
§ 1003.2(c)(2), (3).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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