09-0922-ag
Tjhin v. Holder
BIA
Nelson, IJ
A098 361 398
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS
FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A
LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
“(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 5 th day of January, two thousand ten.
5
6 PRESENT:
7 JOSEPH M. McLAUGHLIN,
8 BARRINGTON D. PARKER,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _______________________________________
12
13 FRANSISCA TJHIN,
14 Petitioner,
15
16 v. 09-0922-ag
17 NAC
18
19 ERIC H. HOLDER, Jr., U.S. ATTORNEY
20 GENERAL,
21 Respondent.
22 _______________________________________
23
1 FOR PETITIONER: H. Raymond Fasano, New York, New
2 York.
3
4 FOR RESPONDENT: Tony West, Assistant Attorney
5 General, Luis E. Perez, Senior
6 Litigation Counsel, John C.
7 Cunningham, Senior Litigation
8 Counsel, Office of Immigration
9 Litigation, Civil Division, United
10 States Department of Justice,
11 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
4 review is DENIED.
5 Petitioner Fransisca Tjhin, a native and citizen of
6 Indonesia, seeks review of a February 6, 2009 order of the
7 BIA denying her motion to reopen her removal proceedings.
8 In re Fransisca Tjhin, No. A098 361 398 (B.I.A. Feb. 6,
9 2009). We assume the parties’ familiarity with the
10 underlying facts and procedural history of the case.
11 We review the BIA’s denial of a motion to reopen for
12 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
13 (2d Cir. 2006). However, when the BIA analyzes country
14 conditions evidence submitted with a motion to reopen, “we
15 review the BIA’s fact-finding only for ‘substantial
16 evidence.’” Jian Hui Shao v. Mukasey, 546 F.3d 138, 169
17 (2d Cir. 2008).
2
1 An alien who has been ordered removed may file one
2 motion to reopen, but must do so within 90 days of the final
3 administrative decision. 8 U.S.C. § 1229a(c)(7). Here, the
4 BIA properly denied Tjhin’s motion to reopen as untimely
5 where she filed it over twenty-one months after her November
6 2006 final order of removal. See id.; 8 C.F.R.
7 § 1003.2(c)(2). The BIA properly concluded that the
8 evidence Tjhin submitted, including the most recent State
9 Department International Religious Freedom Report for
10 Indonesia, did not “adequately demonstrate[] material
11 changed country conditions” that would warrant an exception
12 to the filing deadline.
13 Tjhin argues that the BIA erred in finding that she did
14 not demonstrate changed country conditions because it did
15 not “explain under what standard” it reached its conclusion.
16 However, while the BIA may abuse its discretion if it gives
17 no indication that it considered “country conditions
18 evidence submitted by an applicant that materially bears on
19 his claim,” Poradisova v. Gonzales, 420 F.3d 70, 81 (2d Cir.
20 2005), it is not required to “expressly parse or refute on
21 the record each individual argument or piece of evidence
22 offered by the petitioner,” Wei Guang Wang v. BIA, 437 F.3d
23 270, 275 (2d Cir. 2006) (internal quotation marks omitted).
3
1 Here, presented with evidence it is “asked to consider time
2 and again,” the BIA reasonably found that Tjhin had not
3 shown changed country conditions. See id. Even accepting
4 Tjhin’s assertion that the record contained evidence of both
5 interreligious violence and governmental support for
6 religious diversity, the record does not compel the
7 conclusion that the agency erred in finding that there had
8 not been a material change. Jian Hui Shao, 546 F.3d at 169.
9 Tjhin further asserts that the BIA abused its
10 discretion when it required her to show changed country
11 conditions as a condition precedent to her pattern or
12 practice claim. That argument fails. An alien may show a
13 pattern or practice of persecution against a group to which
14 she belongs in lieu of showing that she would be singled out
15 for persecution. 8 C.F.R. §§ 208.13(b)(2), 208.16(b)(2).
16 However, such a showing must be made in support of an asylum
17 application, not an untimely motion to reopen. Because
18 Tjhin had submitted an untimely motion to reopen, she was
19 required to demonstrate changed country conditions. See
20 8 U.S.C. § 1229a(c)(7)(C)(ii).
21 For the foregoing reasons, the petition for review
22 is DENIED. As we have completed our review, any stay of
23 removal that the Court previously granted in this petition
4
1 is VACATED, and any pending motion for a stay of removal in
2 this petition is DISMISSED as moot. Any pending request for
3 oral argument in this petition is DENIED in accordance with
4 Federal Rule of Appellate Procedure 34(a)(2), and Second
5 Circuit Local Rule 34(b).
6
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe, Clerk
9
10
11 By:____________________________
5