09-0898-ag

Udjari v. Holder

BIA

A096 264 322

A096 264 323

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 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 of
2

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

10 and citizens of Indonesia, seek review of the February 6,

11 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). 

13 We assume the parties’ familiarity with the underlying facts

14 and procedural history of the case.

15 We review the BIA’s denial of a motion to reopen for

16 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517

17 (2d Cir. 2006). When the BIA considers relevant evidence of

18 country conditions in evaluating a motion to reopen, we

19 review the BIA’s factual findings under the substantial

20 evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d

21 138, 169 (2d Cir. 2008). 

22 An alien seeking to reopen proceedings must file his

23 motion to reopen no later than 90 days after the date on

24 which the final administrative decision was rendered. See
3

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.” 

10 8 C.F.R. § 1003.2(c)(3)(ii). The BIA reasonably found that

11 Petitioners’ motion to reopen did not qualify for such an

12 exception.

13 Petitioners’ argument that the BIA did not adequately

14 explain how it concluded that Petitioners did not

15 demonstrate changed country conditions is unavailing. As

16 the government correctly argues, the evidence Udjari

17 submitted with her motion to reopen does not compel the

18 conclusion that the agency erred in finding that conditions

19 for ethnic Chinese or Christians in Indonesia had not

20 materially worsened. See Santoso v. Holder, 580 F.3d 110,

21 111-12 (2d Cir. 2009); see also Wei Guang Wang v. BIA, 437

22 F.3d 270, 275 (2d Cir. 2006) (noting that the BIA need not
4

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

10 BIA’s decision. The BIA did not find that changed country

11 conditions were a precondition to a pattern or practice

12 claim. Rather, it found that Petitioners failed to show

13 changed country conditions sufficient to excuse the untimely

14 filing of their motion to reopen. Contrary to Petitioners’

15 argument, this finding was a sufficient basis upon which to

16 deny the motion to reopen, and the BIA applied the proper

17 standard in doing so. See 8 U.S.C. § 1229a(c)(7)(C)(ii). 

18 Likewise, Petitioners’ reliance on Mufied v. Mukasey,

19 508 F.3d 88 (2d Cir. 2007), in which we called into question

20 the BIA’s “systemic or pervasive” test for evaluating 

21 pattern or practice claims, is misplaced. As the BIA

22 correctly stated, and as the government now argues, Mufied

23 is inapposite because it concerned a pattern or practice
5

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. 

10 Finally, to the extent Petitioners challenge the BIA’s

11 decision not to reopen their proceedings sua sponte under 8

12 C.F.R. § 1003.2(a), this Court lacks jurisdiction to review

13 the issue, because such a decision is “entirely

14 discretionary.” Ali v. Gonzales, 448 F.3d at 518. 

15 For the foregoing reasons, the petition for review is

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

17 removal that the Court previously granted in this petition

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

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

20 oral argument in this petition is DENIED in accordance with

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

22 Circuit Local Rule 34.1(b).

23 FOR THE COURT: 

24

25 Catherine O’Hagan Wolfe, Clerk

26

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28