United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit December 21, 2005
Charles R. Fulbruge III
Clerk
No. 05-60201
Summary Calendar
ALI YANTO,
Petitioner,
VERSUS
ALBERTO R. GONZALES, U S Attorney General,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF
IMMIGRATION APPEALS
(A78 579 526)
Before JOLLY, DAVIS and OWEN, Circuit Judges.
PER CURIAM:*
In this appeal, Yanto, a native and citizen of Indonesia,
challenges the Board of Immigration Appeals (BIA) order denying
Yanto’s motion to reconsider as untimely. We find no error and
affirm.
I.
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
In April 2002, an Immigration Judge denied Yanto’s asylum
application on grounds that Yanto failed to provide credible
evidence in support of his claims. The Board dismissed Yanto’s
appeal after finding that the immigration judge’s adverse
credibility findings were supported by the record. Yanto
petitioned for review of that decision with this court and in
November 2004, we denied that petition.
On December 28, 2004, Yanto moved the Board to reopen his
application for asylum. Yanto asserted that changed circumstances
in Indonesia necessitated reopening his case. He asserted that
more riots and violence had occurred in Indonesia since his asylum
hearing and Christians had been targeted by Islamic extremists to
a greater degree. Yanto also alleged that he had recently become
engaged to an Indonesian asylee.
The Board, in March of 2005, denied Yanto’s motion to reopen.
The Board concluded that Yanto had not alleged new facts as
required by 8 C.F.R. § 3.2. Consequently the Board construed
Yanto’s motion as a motion to reconsider its November 6, 2003
decision and denied the motion as untimely. This appeal followed.
II.
In order to qualify as a “motion to reopen”, a motion must
state new facts that will be proven and these facts must be
supported by affidavits or other evidentiary material. 8 U.S.C. §
1229(a)(c)(6)(B). The BIA can deny a motion to reopen if the mover
fails to proffer previously unavailable material evidence. The
2
Board found that Yanto failed to allege new facts in his motion to
reopen as the Act requires. The Board viewed Yanto’s submitted
materials regarding country conditions as simply supplemental and
cumulative to evidence already considered by the Board. After
reviewing the record we are satisfied that the Board did not abuse
its discretion in characterizing the evidence in this way. Yanto
identified “changed conditions” in Indonesia as “more riots” and
“more violence”. The focus of his motion, however, is repetition
of his arguments concerning the merits of his fear of returning to
Indonesia as stated by him in his testimony before the Immigration
Judge. He also details his disagreement with the Immigration
Judge’s conclusion that his earlier testimony was not credible.
Also, much of the evidence Yanto cited in his motion predated his
April 9, 2002 asylum hearing date. We are satisfied that the Board
did not abuse its discretion in concluding that Yanto failed to
proffer previously unavailable material evidence. The Board did
not err in denying the motion to reopen and to construe the motion
as one to reconsider.
Under 8 CFR § 1003.19(b), a motion to reconsider “must be
filed with Board within 30 days after the mailing of the Board
decision or on or before July 31, 1996 whichever is later”.
Because Yanto’s motion was filed more than one year after the
Board’s November 6, 2003 decision, it was untimely and the Board
did not err in denying the motion. We, therefore, deny the
petition for review.
3
DENIED.
4