Johnson Napitulpulu v. Jefferson Sessions

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 7 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

JOHNSON NAPITULPULU, Nos. 13-71873
14-71291
Petitioner,
Agency No. A095-634-743
v.

JEFFERSON B. SESSIONS III, Attorney MEMORANDUM*
General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted June 26, 2017**

Before: PAEZ, BEA, and MURGUIA, Circuit Judges.

Johnson Napitulpulu, a native and citizen of Indonesia, petitions for review

of the Board of Immigration Appeals’ (“BIA”) orders denying his motions to

reopen removal proceedings based on changed country conditions (No. 13-71873)

and based on ineffective assistance of counsel (No. 14-71291). We have

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes these cases are suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the BIA’s

denial of a motion to reopen, Toufighi v. Mukasey, 538 F.3d 988, 992 (9th Cir.

2008), and we deny the petitions for review.

As to No. 13-71873, the BIA did not abuse its discretion in denying

Napitulpulu’s motion to reopen where it was filed more than five years after the

BIA’s final order, see 8 C.F.R. § 1003.2(c)(2), and Napitulpulu failed to establish

prima facie eligibility for the relief he sought, see Toufighi, 538 F.3d at 996 (the

BIA may deny a motion to reopen based on changed country conditions for failure

to establish a prima case); Wakkary v. Holder, 558 F.3d 1049, 1065 (9th Cir. 2009)

(even under disfavored group analysis, petitioner must present some evidence of

individualized risk).

As to No. 14-71291, the BIA did not abuse its discretion in denying

Napitulpulu’s motion to reopen based on ineffective assistance of counsel where it

was filed more than six years after the BIA’s final order and was numerically-

barred, see 8 C.F.R. § 1003.2(c)(2), and where Napitupulu failed to demonstrate

that he acted with the due diligence required to warrant equitable tolling, see

Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003) (equitable tolling of time and

numerical limitations on motions to reopen available where petitioner is prevented

from filing due to deception, fraud or error, and exercises due diligence).

PETITIONS FOR REVIEW DENIED.

2 14-71291