Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
5-7-2008
Kustianto v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-3988
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-3988
RIDWAN KUSTIANTO
Petitioner
v.
ATTORNEY GENERAL OF
THE UNITED STATES,
Respondent
On Petition for Review of an Order
of the Board of Immigration Appeals
(No. A95-963-739)
Immigration Judge: Hon. Eugene Pugliese
Submitted Under Third Circuit LAR 34.1(a)
March 14, 2008
Before: FUENTES, CHAGARES, and VAN ANTWERPEN, Circuit Judges
(Opinion filed: May 7, 2008)
OPINION
CHAGARES, Circuit Judge
Ridwan Kustianto petitions for review of the Board of Immigration Appeals’
(“BIA”) order of August 14, 2006, denying his motion to reopen. For the reasons given
below, his petition will be denied.
I.
Kustianto, an ethnic Chinese Christian who resided in Indonesia, entered the
United States as a business visitor on August 11, 2000. Although authorized to stay only
until August 20, 2000, Kustianto remained in this country after that date. On April 8,
2003, the Department of Homeland Security (DHS) initiated removal proceedings against
Kustianto by serving him a Notice to Appear.
At a May 3, 2003 hearing before an Immigration Judge (IJ), Kustianto conceded
removability. He applied for asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”), arguing that he would be subject to persecution
and torture in Indonesia on account of his Christian faith. At a November 24, 2004 merits
hearing, the IJ found Kustianto failed to file his asylum application within the one-year
time period mandated by 8 U.S.C. § 1158(a)(2)(B) (and failed to establish changed or
extraordinary circumstances to excuse the failure), and therefore was ineligible for
asylum. The IJ also found that Kustianto failed to meet his burden of establishing either
withholding of removal eligibility or eligibility under the CAT. The IJ therefore ordered
Kustianto’s removal.
Kustianto appealed, and the BIA affirmed on February 8, 2006. Kustianto did not
seek judicial review of the BIA’s decision. Rather, on June 2, 2006 – 114 days after the
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BIA’s action – he moved for reopening. On August 14, 2006, the BIA denied that motion
as not timely filed. The BIA held that the evidence Kustianto submitted did not
demonstrate the “changed country conditions” necessary to excuse his failure to file
within the 90-day period mandated by 8 C.F.R. § 1003.2(c)(2). Kustianto has timely
petitioned this Court for review of the BIA’s August 14, 2006 order.
II.
We review the denial of a motion to reopen for abuse of discretion, “mindful of the
broad deference that the Supreme Court would have us afford.” Ezeagwuna v. Ashcroft,
325 F.3d 396, 409 (3d Cir. 2003) (internal quotation marks omitted). Under this standard,
the BIA’s decision will be reversed only “if it is arbitrary, irrational, or contrary to law.”
Sevoian v. Ashcroft, 290 F.3d 166, 175 (3d Cir. 2002) (internal quotation marks omitted).
III.
A motion to reopen “shall not be granted unless it appears to the Board that
evidence sought to be offered . . . was not available and could not have been discovered
or presented at the former hearing.” Caushi v. Att’y Gen., 436 F.3d 220, 231 (3d Cir.
2006). Moreover, such motions must be filed within ninety days of the BIA’s decision.
See 8 C.F.R. § 1003.2(c)(2). As noted, Kustianto did not file his motion to reopen until
114 days after the BIA’s decision, rendering it untimely.
The time-bar of § 1003.2(c)(2) does not apply, however, if the alien seeks to admit
material evidence of “changed circumstances arising in the country of nationality or in the
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country to which deportation has been ordered,” which “was not available and could not
have been discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii).
Kustianto contends that the BIA abused its discretion because it refused to
consider the evidence he submitted in support of his motion on the ground that the
evidence was time-barred. He claims that the BIA acted irrationally and arbitrarily
because the evidence he sought to offer, namely letters from his father, sister, and a
family friend, “is material and was not available and could not have been discovered or
presented at the former hearing.” (Petitioner’s Br. at 9.)
Kustianto’s argument fails for two reasons. First, contrary to the assertion in his
brief to this Court, Kustianto testified at his November 24, 2004 hearing that he was in
contact with his family in Indonesia, and discussed with them the conditions in that
country. Therefore, he has not demonstrated that the material in the three letters he now
seeks to admit was “not available” or “could not have been discovered or presented” at
the November 24, 2004 hearing. 8 C.F.R. § 1003.2(c)(3)(ii). Second, nothing in the
letters evinces “changed circumstances” in Indonesia – rather, the letters demonstrate
only a continuation of exactly the types of problems that Kustianto complained of in his
application for asylum, withholding of removal, and CAT relief. Accordingly, the letters
are not sufficient grounds for considering an untimely motion to reopen.
IV.
For the reasons set forth above, we will deny Kustianto’s petition for review.
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