Sembel v. Holder

11-3060-ag
Sembel v. Holder
BIA
A098 361 268

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
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

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 11th day of May, two thousand twelve.
5
6 PRESENT:
7 JOSEPH M. McLAUGHLIN,
8 JOSÉ A. CABRANES,
9 BARRINGTON D. PARKER,
10 Circuit Judges.
11 _____________________________________
12
13 ANTONNY OGIE SEMBEL,
14 Petitioner,
15
16 v. 11-3060-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Scott E. Bratton, Cleveland, Ohio.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Douglas E. Ginsburg,
27 Assistant Director; Benjamin Mark
28 Moss, Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 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 Antonny Ogie Sembel, a native and citizen of Indonesia,

6 seeks review of a July 13, 2011, decision of the BIA denying

7 his motion to reopen. In re Antonny Ogie Sembel, No. A098

8 361 268 (B.I.A. July 13, 2011). We assume the parties’

9 familiarity with the underlying facts and procedural history

10 of this case.

11 We review the BIA’s denial of Sembel’s motion to reopen

12 for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517

13 (2d Cir. 2006). When, as here, the BIA considers relevant

14 evidence of country conditions in evaluating the motion to

15 reopen, we review the BIA’s factual findings under the

16 substantial evidence standard. See Shao v. Mukasey, 546

17 F.3d 138, 169 (2d Cir. 2008).

18 An alien may file only one motion to reopen and must do

19 so within 90 days of the agency’s final administrative

20 decision. 8 U.S.C. § 1229a(c)(7)(A), (C); 8 C.F.R.

21 § 1003.2(c)(2). Although Sembel’s motion was indisputably

22 untimely because it was filed more than four years after the

23 agency’s final order of removal, see 8 U.S.C.

2
 1 § 1229a(c)(7)(C)(i), there is no time limitation for filing

2 a motion to reopen to apply or reapply for asylum if it is

3 “based on changed country conditions arising in the country

4 of nationality or the country to which removal has been

5 ordered, if such evidence is material and was not available

6 and would not have been discovered or presented at the

7 previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see

8 also 8 C.F.R. § 1003.2(c)(3)(ii).

9 Here, the BIA did not abuse its discretion in finding

10 that Sembel failed to establish changed conditions in

11 Indonesia with respect to the treatment of homosexuals.

12 See 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R. §

13 1003.2(c)(3)(ii). In this regard, while the BIA

14 acknowledged that the record evidence indicated that,

15 subsequent to the conclusion of Sembel’s 2004 proceedings,

16 the Indonesian government enacted a “2008 Pornography Law”

17 banning gay and lesbian sex, it nevertheless reasonably

18 concluded that this development did not constitute a change

19 in conditions in Indonesia regarding the treatment of

20 homosexuals, particularly in light of the fact that Sembel

21 indicated in his affidavit that he had been harmed in

22 Indonesia on multiple occasions during the 1980s

3
 1 specifically because of his sexual orientation. See 8

2 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R. §

3 1003.2(c)(3)(ii).

4 Furthermore, although Sembel argues that conditions for

5 homosexuals in Indonesia have significantly worsened since

6 his 2004 proceedings, he has failed to submit any evidence

7 in support of his motion describing Indonesia’s treatment of

8 homosexuals at the time of his 2004 removal proceedings.

9 See Matter of S-Y-G-, 24 I. & N. Dec. 247, 253 (BIA 2007)

10 (noting that in evaluating evidence of changed country

11 conditions, the BIA “compare[s] the evidence of country

12 conditions submitted with the motion to those that existed

13 at the time of the merits hearing below”). Accordingly, the

14 BIA did not abuse its discretion in finding that Sembel

15 failed to demonstrate a change in country conditions

16 excusing the untimely filing of his motion to reopen.

17 See 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R. §

18 1003.2(c)(3)(ii); Matter of S-Y-G-, 24 I. & N. Dec. at 253.

19 Moreover, the BIA did not err in concluding that Sembel

20 failed to submit material evidence of changed country

21 conditions as required to warrant consideration of his

22 untimely motion, see 8 U.S.C. § 1229a(c)(7)(C)(ii), because

23 the evidence he submitted did not rebut the agency’s prior

4
 1 adverse credibility determination. See Kaur v. BIA, 413

2 F.3d 232, 234 (2d Cir. 2005) (finding that the BIA does not

3 abuse its discretion in denying a motion to reopen where

4 “the evidence submitted by petitioner in support of her

5 motion was not ‘material’ because it did not rebut the

6 adverse credibility finding that provided the basis for the

7 IJ’s denial of petitioner’s underlying asylum application”);

8 see also INS v. Abudu, 485 U.S. 94, 104-05 (1988)

9 (recognizing that a movant’s failure to produce material

10 evidence is an independent basis for the denial of a motion

11 to reopen). Indeed, none of the evidence that Sembel

12 submitted in support of his motion to reopen meaningfully

13 addressed the underlying adverse credibility determination,

14 which was based on inconsistencies between Sembel’s

15 testimony and asylum application in relation to his claim

16 that he had suffered past harm and feared future harm on

17 account of his Chinese ethnicity and Christian faith. Kaur,

18 413 F.3d at 234. Moreover, contrary to Sembel’s suggestion,

19 the psychological evidence in the record–which purportedly

20 explains why Sembel failed to disclose during his removal

21 proceedings that he had been harmed in Indonesia on account

22 of his sexual orientation–does not address Sembel’s failure

23 to testify credibly regarding his ethnicity and religion
5
 1 claim. See Kaur, 413 F.3d at 234; see also Qin Wen Zheng v.

2 Gonzales, 500 F.3d 143, 147 (2d Cir. 2007) (citing Siewe v.

3 Gonzales, 480 F.3d 160, 170 (2d Cir. 2007) for the

4 proposition that the BIA may properly reject unauthenticated

5 evidence submitted with a motion to reopen where the agency

6 made an adverse credibility determination in the underlying

7 removal proceedings).

8 For the foregoing reasons, the petition for review is

9 DENIED. As we have completed our review, any stay of

10 removal that the Court previously granted in this petition

11 is VACATED, and any pending motion for a stay of removal in

12 this petition is DISMISSED as moot. Any pending request for

13 oral argument in this petition is DENIED in accordance with

14 Federal Rule of Appellate Procedure 34(a)(2), and Second

15 Circuit Local Rule 34.1(b).

16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
18
19

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