2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-20-2012

Keke Lesmana v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-4109

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-4109

___________

KEKE LESMANA; CASSANDRA E. PRASETYO,

Petitioners

v.

ATTORNEY GENERAL OF THE UNITED STATES

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency Nos. A078-580-889 and A078-580-890)

Immigration Judge: Honorable Annie S. Garcy

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

August 15, 2012

Before: SLOVITER, GREENAWAY, JR., and COWEN, Circuit Judges

(Opinion filed: August 20, 2012 )

___________

OPINION

___________

PER CURIAM

Petitioners Keke Lesmana and Cassandra E. Prasetyo seek review of an order of 

the Board of Immigration Appeals (“BIA” or “Board”) denying their second motion to 
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reopen. For the reasons that follow, we will deny their petition for review.

Petitioners are husband and wife, natives and citizens of Indonesia, and ethnic 

Chinese Christians. They entered the United States as non-immigrant visitors in March 

2000, and were placed into removal proceedings. They subsequently applied for asylum, 

withholding of removal, and relief under the Convention Against Torture. In 2006, 

Petitioners testified before the IJ that they had experienced past persecution in Indonesia 

on account of their Christianity and Chinese ethnicity. The IJ denied all relief, finding 

that, while their testimony was credible, the incidents they related were not sufficiently 

severe and extreme to constitute past persecution, and that there was no evidence in the 

record to suggest that either of them might be singled out for future persecution if they 

were to return to Indonesia. Additionally, the IJ found that the evidence in the record did 

not support a finding of a pattern and practice of persecution of ethnic Chinese Christians 

in Indonesia.

The BIA dismissed Petitioners‟ administrative appeal, and we denied their petition 

for review. See Lesmana v. Att‟y Gen., 331 F. App‟x 160 (3d Cir. 2009). In February 

2010, the BIA denied Petitioners‟ first motion to reopen because it was time-barred, did 

not satisfy the exceptions to the 90-day filing period, and did not reflect an exceptional 

situation warranting the exercise of its discretionary sua sponte authority. Petitioners did 

not petition for review of that determination to this Court. In June 2011, Petitioners filed 

a second motion to reopen with the BIA. In October 2011, the BIA denied the motion, 
3

concluding that Petitioners failed to show how the evidence that they submitted 

demonstrated materially changed conditions in Indonesia. The Board also concluded that 

the evidence presented would not likely change the outcome even if the proceedings were 

reopened. Lastly, the Board determined that to the extent Petitioners sought reopening on 

the basis of case law from outside of this Circuit, this Circuit has not adopted the analysis 

set forth in those cases. This petition for review followed. 

We have jurisdiction pursuant to 8 U.S.C. § 1252. We review the BIA‟s denial of 

a motion to reopen for an abuse of discretion. See Liu v. Att‟y Gen., 555 F.3d 145, 148 

(3d Cir. 2009). Such review is “highly deferential” to the BIA. Guo v. Ashcroft, 386 

F.3d 556, 562 (3d Cir. 2004). The BIA‟s denial of a motion to reopen will be upheld 

unless the decision is “arbitrary, irrational, or contrary to law.” Rranci v. Att‟y Gen., 540 

F.3d 165, 171 (3d Cir. 2008) (citations omitted). An alien may file only one motion to 

reopen, and must file the motion with the BIA “no later than 90 days after the date on 

which the final administrative decision was rendered.” 8 C.F.R. § 1003.2(c)(2); see also

8 U.S.C. § 1229a(c)(7)(c)(ii). However, the time and number requirements do not apply 

to motions that rely on “changed circumstances arising in the country of nationality . . . if 

such evidence is material and was not available and could not have been discovered or 

presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii). 

Petitioners first argue that the BIA erred in determining that they failed to show 

how the evidence that they submitted in support of their second motion to reopen 
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establishes changed country conditions in Indonesia regarding the treatment of ethnic 

Chinese Christians.1 The Government is correct that Petitioners fail to cite any record 

evidence supporting that argument in their brief. Nevertheless, after reviewing the 

record, we conclude that the Board did not abuse its discretion in ruling that the 

documentary evidence that Petitioners presented with their motion fails to demonstrate 

that conditions for Christians have materially changed since their 2006 hearing. Filja v. 

Gonzales, 447 F.3d 241, 252 (3d Cir. 2006). 

Although Petitioners‟ articles show ongoing ethnic and religious strife in 

Indonesia, including attacks on Chinese Christians, the materials do not establish that 

conditions have worsened. Further, the 2010 State Department Report on International

Religious Freedom indicates that, in many instances, the Indonesian government is 

willing to prosecute individuals who provoke religious violence. (Administrative Record 

(“A.R.”) at 67-68.) Indeed, the 2011 Human Rights Watch World Report for Indonesia 

notes the arrest of ten suspects, “including the leader of the local chapter of the militant 

Islamic Defenders Front,” following an attack on two church leaders in September 2010. 

(Id. at 76.) Accordingly, under our deferential standard of review, we cannot agree with 

Petitioners that their submissions demonstrated changed country conditions.

Petitioners also argued before the BIA that their case should be reopened because, 

in Indonesia, they are members of a “disfavored group” consisting of Chinese Christians. 

 

1 There is no dispute that Petitioners‟ second motion to reopen was time and number 
5

In support, they relied on two Ninth Circuit Court of Appeals decisions, Wakkary v. 

Holder, 558 F.3d 1049 (9th Cir. 2009), and Tampubolon v. Holder, 610 F.3d 1056 (9th 

Cir. 2010). Both Wakkary and Tampubolon involved Christian Indonesian petitioners 

and reinforced precedent in Sael v. Ashcroft, 386 F.3d 922, 927 (9th Cir. 2004), which 

held that ethnic Chinese are disfavored in Indonesia. In Wakkary, the Ninth Circuit 

applied the “disfavored group” analysis to applications for withholding of removal and 

remanded for consideration of whether Chinese Christians are disfavored in Indonesia. 

558 F.3d at 1067. In Tampubolon, the Ninth Circuit held that all Christians, including 

those who are not Chinese, are a disfavored group. 610 F.3d at 1062. The Petitioners 

appear to claim that, based on these decisions, the more widespread the threat to a 

disfavored group, the less individualized the threat of persecution has to be. See Sael, 

386 F.3d at 925-27.

In light of controlling precedent in this Circuit, the Board did not abuse its 

discretion in declining to apply Wakkary and Tampubolon. We have rejected the 

“disfavored group” approach as applied to Chinese Christians in Indonesia, stating that, 

concerning Sael, we “disagree with the Ninth Circuit‟s use of a lower standard for 

individualized fear absent a „pattern or practice‟ of persecution.” Lie v. Ashcroft, 

396 F.3d 530, 538 n.4 (3d Cir. 2005). We later declined to revisit that issue. See Wong 

v. Att‟y Gen., 539 F.3d 225, 235 n.5 (3d Cir. 2008). Although Wakkary and Tampubolon

 

barred. 
6

arguably extend and build upon Sael, our prior rejection of the “disfavored group” 

approach is broad enough to encompass these decisions. 

Finally, although Petitioners argue that the Board abused its discretion by refusing 

to reopen their case under its sua sponte authority, the Government correctly notes that 

the Board‟s decision does not state that it declined to exercise its sua sponte authority. 

Nevertheless, even if the Board had explicitly declined to sua sponte reopen the 

proceedings, such a discretionary decision is not reviewable. See 8 U.S.C. 

§ 1252(a)(2)(B)(ii); Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir. 2003); but see

Cruz v. Att‟y Gen., 452 F.3d 240, 250 (3d Cir. 2006) (explaining that we retain 

jurisdiction over some issues relating to the denials of sua sponte relief, which are not 

implicated in this case). 

For all of these reasons, we will deny the petition for review.