09-089 8-ag

Ud jari v. Holder BIA A096 264 322 A096 264 323 

### UNITED STATES COURT OFAPPEALS FOR THE SE COND CIRCU IT 

# SUM MARY 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 22 day of June, two thousand ten. nd 5 6 PRESENT: 7 DENNIS JACOBS, 8 Chief Judge , 9 JOHN M. WALKER, JR., 10 GERARD E. LYNCH, 11 Circuit Judges . 12

_________________________________________ 13 14 INTANRI UDJARI, a.k.a. INTANRI SURYA 15 UDJARI, BUDI SENTOSO, 16 Petitioners, 17 18 v. 09-0898-ag 19 NAC 20 ERIC H. HOLDER, JR., UNITED STATES 21 ATTORNEY GENERAL, 22 Respondent . 23

_________________________________________ 24 25 FOR PETITIONERS: H. Raymond Fasano, Madeo & Fasano, 26 New York, New York. 27 28 FOR RESPONDENT: Tony West, Assistant Attorney 29 General; Ethan B. Kanter, Senior 30 Litigation Counsel; Paul F. Stone, 31 Trial Attorney, Office of2 1 Immigration Litigation, United 2 States Department of Justice, 3 Washington, D.C. 4 5 UPON DUE CONSIDERATION of this petition for review of a 6 Board of Immigration Appeals (“BIA”) decision, it is hereby 7 ORDERED, ADJUDGED, AND DECREED, that the petition for review 8 is DENIED. 9 Petitioners Intanri Udjari and Budi Sentoso, natives 1 0 and citizens of Indonesia, seek review of the February 6, 1 1 2009 order of the BIA denying their motion to reopen. See 12 In re Udjari, Nos. A096 264 322/333 (B.I.A. Feb. 6, 2009). 1 3 We assume the parties’ familiarity with the underlying facts 1 4 and procedural history of the case. 1 5 We review the BIA’s denial of a motion to reopen for 1 6 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517 1 7 (2d Cir. 2006). When the BIA considers relevant evidence of 1 8 country conditions in evaluating a motion to reopen, we 1 9 review the BIA’s factual findings under the substantial 2 0 evidence standard. See Jian Hui Shao v. Mukasey , 546 F.3d 2 1 138, 169 (2d Cir. 2008). 2 2 An alien seeking to reopen proceedings must file his 2 3 motion to reopen no later than 90 days after the date on 2 4 which the final administrative decision was rendered. See3 1 8 C.F.R. § 1003.2(c)(2). In this case, there is no dispute 2 that Petitioners’ September 2008 motion was untimely, 3 because the BIA issued a final order of removal in December 4 2004. See id. However, there is no time or numerical limit 5 for filing a motion to reopen if it is “based on changed 6 circumstances arising in the country of nationality or in 7 the country to which deportation has been ordered, if such 8 evidence is material and was not available and could not 9 have been discovered or presented at the previous hearing.” 1 0 8 C.F.R. § 1003.2(c)(3)(ii). The BIA reasonably found that 1 1 Petitioners’ motion to reopen did not qualify for such an 1 2 exception. 1 3 Petitioners’ argument that the BIA did not adequately 1 4 explain how it concluded that Petitioners did not 1 5 demonstrate changed country conditions is unavailing. As 1 6 the government correctly argues, the evidence Udjari 1 7 submitted with her motion to reopen does not compel the 1 8 conclusion that the agency erred in finding that conditions 1 9 for ethnic Chinese or Christians in Indonesia had not 2 0 materially worsened. See Santoso v. Holder , 580 F.3d 110, 2 1 111-12 (2d Cir. 2009); see also Wei Guang Wang v. BIA, 437 2 2 F.3d 270, 275 (2d Cir. 2006) (noting that the BIA need not4 1 “expressly parse or refute on the record each individual 2 argument or piece of evidence offered by the petitioner” 3 (internal quotation marks and citations omitted)). 4 Accordingly, the BIA’s finding that Petitioners did not 5 demonstrate changed country conditions is supported by 6 substantial evidence. See id. 7 Petitioners’ assertion that the BIA erred when it 8 required Udjari to show changed country conditions as a 9 “pretext” to her pattern or practice claim misconstrues the 1 0 BIA’s decision. The BIA did not find that changed country 1 1 conditions were a precondition to a pattern or practice 1 2 claim. Rather, it found that Petitioners failed to show 1 3 changed country conditions sufficient to excuse the untimely 1 4 filing of their motion to reopen. Contrary to Petitioners’ 1 5 argument, this finding was a sufficient basis upon which to 1 6 deny the motion to reopen, and the BIA applied the proper 1 7 standard in doing so. See 8 U.S.C. § 1229a(c)(7)(C)(ii). 1 8 Likewise, Petitioners’ reliance on Mufied v. Mukasey , 1 9 508 F.3d 88 (2d Cir. 2007), in which we called into question 2 0 the BIA’s “systemic or pervasive” test for evaluating 2 1 pattern or practice claims, is misplaced. As the BIA 2 2 correctly stated, and as the government now argues, Mufied 2 3 is inapposite because it concerned a pattern or practice5 1 claim presented in the first instance – not in an untimely 2 motion to reopen, as is the case here. See Mufied , 508 F.3d 3 at 89, 92. The BIA denied Udjari’s motion simply because 4 she failed to meet the requirements of an untimely motion to 5 reopen. As such, the BIA did not reach the merits of 6 Udjari’s underlying pattern or practice claim. Accordingly, 7 the viability of the “systemic or pervasive” test in 8 assessing a pattern or practice claim has no bearing on this 9 case. 1 0 Finally, to the extent Petitioners challenge the BIA’s 1 1 decision not to reopen their proceedings sua sponteunder 8 1 2 C.F.R. § 1003.2(a), this Court lacks jurisdiction to review 1 3 the issue, because such a decision is “entirely 1 4 discretionary.” Ali v. Gonzales , 448 F.3d at 518.

For the foregoing reasons, the petition for review is 15 1 6 DENIED. As we have completed our review, any stay of 1 7 removal that the Court previously granted in this petition 1 8 is VACATED, and any pending motion for a stay of removal in 1 9 this petition is DISMISSED as moot. Any pending request for 2 0 oral argument in this petition is DENIED in accordance with 2 1 Federal Rule of Appellate Procedure 34(a)(2), and Second 2 2 Circuit Local Rule 34.1(b). 2 3 FOR THE COURT: 24 2 5 Catherine O’Hagan Wolfe, Clerk 26 27 28