2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-20-2009

Keyrupan v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2991

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IMG-117 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 08-2991

___________

CYNTHIA PATRICIA KEYRUPAN,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A95-369-629)

Immigration Judge: Honorable Charles M. Honeyman

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

July 15, 2009

Before: BARRY, SMITH AND HARDIMAN, Circuit Judges

(Opinion filed: July 20, 2009)

___________

OPINION

___________

PER CURIAM

Petitioner Cynthia Keyrupan petitions for review of the Board of Immigration

Appeals’ (“BIA”) June 6, 2008 order denying her motion to reopen her immigration

proceedings. We will deny the petition.
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I.

Cynthia Keyrupan is a practicing Christian and citizen of Indonesia. She entered

the United States on September 10, 2001, as a non-immigrant B-2 visitor. On December

26, 2001, Keyrupan filed an application for asylum, withholding of removal, and

protection under the Convention Against Torture (“CAT”). 

At an April 19, 2004 evidentiary hearing, Keyrupan stated that she came to the

United States to escape violence and discrimination directed against her because she is an

ethnic Chinese Christian. The Immigration Judge (“IJ”) denied Keyrupan’s application

for asylum, finding that the harm demonstrated did not rise to the level of past

persecution. With no presumption due to past persecution, Keyrupan was unable to

demonstrate that she would be targeted for future persecution. Keyrupan appealed the

IJ’s ruling and, on December 28, 2005, the BIA affirmed. Keyrupan did not petition this

Court for review of that decision.

On January 11, 2008, Keyrupan filed a motion to reopen based on changed country

conditions in Indonesia. The BIA denied the motion to reopen, finding that Keyrupan

failed to establish changed country conditions sufficient to allow her to file beyond the

ninety-day filing requirement for motions to reopen. Specifically, the BIA held that a

2007 United States Department of State Travel Warning (“2007 Travel Warning”) that

Keyrupan offered as evidence in support of changed country conditions did not connect to

her initial asylum claim. In addition, the 2007 Travel Warning did not apply to her
 Keyrupan’s son, a United States citizen, was born on July 12, 2007. 1

3

because she is not a United States citizen. The BIA further noted that to the extent

Keyrupan’s motion could be construed as requesting asylum for her son, such a request

was not relevant to her motion to reopen. As a result, the BIA dismissed the motion to 1

reopen as untimely.

II.

Although we have jurisdiction to review the BIA’s order denying Keyrupan’s

motion to reopen, see, e.g., Ezeagwuna v. Ashcroft, 325 F.3d 396, 405 (3d Cir. 2003), the

scope of our review is quite limited. INS v. Doherty, 502 U.S. 314, 323 (1992). Under

the regulations, the BIA “has discretion to deny a motion to reopen even if the party

moving has made out a prima facie case for relief.” 8 C.F.R. § 1003.2(a). As the

Supreme Court has stated, the regulations “plainly disfavor” such motions. INS v.

Abudu, 485 U.S. 94, 110 (1988). Accordingly, the Court reviews the BIA’s denial of a

motion to reopen for abuse of discretion with “broad deference” to its decision. 

Ezeagwuna, 325 F.3d at 409. Thus, in order to succeed on the petition for review,

Keyrupan must ultimately show that the BIA’s discretionary decision was somehow

arbitrary, irrational, or contrary to law. See Tipu v. INS, 20 F.3d 580, 582 (3d Cir. 1994)

(quotation omitted). Keyrupan has failed to make such a showing.

III.

Keyrupan does not dispute that she filed an untimely motion to reopen. Instead,
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she argues that her motion should be considered pursuant to one of the exceptions to the

time and number restrictions applicable to such motions. See 8 C.F.R. § 1003.2(c)(2). As

mentioned above, the BIA found that Keyrupan was unable to demonstrate that there had

been a “material change in circumstances in Indonesia since the date of the last hearing,”

as required by 8 C.F.R. § 1003.2(c)(3)(ii) in order to avoid application of the time and

numerical limitations.

Keyrupan argues that the BIA abused its discretion in denying the motion to

reopen because the evidence of changed conditions set forth in her motion was both

material and could not have been discovered at the previous hearing. First, we agree with

the BIA that Keyrupan’s changed personal circumstance, i.e. the birth of her son, is

distinct from changed circumstances arising in Indonesia. See Wang v. Board of

Immigration Appeals, 437 F.3d 270, 273 (2d Cir. 2006); see also Liu v. Attorney General,

555 F.3d 145, 150-51 (3d Cir. 2009). Relief is appropriately denied “where a petitioner is

seeking to reopen [her] asylum case due to circumstances entirely of [her] own making

after being ordered to leave the United States.” Wang, 437 F.3d at 274.

We further agree with the BIA that Keyrupan did not demonstrate changed country

conditions in Indonesia as required by the regulations governing motions to reopen. The

sole document that Keyrupan produced with her motion in support of this argument – a

2007 Travel Warning – does not demonstrate that conditions for non-Muslims in

Indonesia have significantly deteriorated since she was denied asylum. The 2007 Travel
5

Warning warns of potential terrorist attacks directed against “American or other Western

citizens and interests.” The warning does not extend to Indonesian citizens nor does it

discuss the treatment of Chinese Christians living in Indonesia.

Although Keyrupan now claims that “[t]here is no question that none of the

evidence of changed circumstances was available at the time of [her] initial hearing,” a

review of the administrative record shows that her attorney advanced essentially the same

argument in support of her April 2005 appeal to the BIA. (See A.R. 58, 62) (“a travel

advisory from our government advises Americans to keep clear of Indonesia” and “[o]ur

government believes Indonesia is a dangerous place and has issued travel warnings for

Americans to keep away.”) Therefore, it is clear that United States citizens were being

warned about travel to Indonesia during the pendency of Keyrupan’s earlier appeal to the

BIA. Accordingly, Keyrupan’s sole argument supporting her motion to reopen is only

cumulative to the previous proceedings. Furthermore, even if the 2007 Travel Warning

described increased risk for United States citizens traveling to Indonesia as compared to

earlier warnings, such information alone would not amount to a material change in

country conditions.

Having found no abuse of discretion on the part of the BIA in denying Keyrupan’s

untimely filed motion to reopen, we will deny the petition for review.