2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-6-2011

Andreas Suryanto v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-3924

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-3924

___________

ANDREAS SURYANTO,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES

____________________________________

Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A095-846-410)

Immigration Judge: Honorable Donald Ferlise

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

January 4, 2011

Before: RENDELL, JORDAN and VAN ANTWERPEN, Circuit Judges

(Opinion filed January 6, 2011 )

___________

OPINION OF THE COURT

___________

PER CURIAM

Petitioner Andreas Suryanto petitions for review of the Board of 

Immigration Appeals= (ABIA@) September 24, 2009 order denying his second 

motion to reopen immigration proceedings. For the following reasons, the 

petition for review will be denied.
2

I.

Suryanto is a native and citizen of Indonesia who entered the United States 

on September 15, 2001, on a B-2 visitor=s visa. On September 15, 2002, he 

applied for asylum on the ground that he was persecuted in Indonesia as an 

ethnic Chinese Christian. On March 10, 2004, following a merits hearing, an 

Immigration Judge (AIJ@) denied Suryanto=s applications for asylum, withholding of 

removal, and protection under the Convention Against Torture (ACAT@), but 

granted him a 60-day voluntary departure period. Suryanto filed an appeal to the 

BIA challenging the IJ=s decision. The BIA dismissed his appeal without opinion. 

Suryanto then filed a timely petition for review. 

Meanwhile, on May 25, 2007, Suryanto married a United States citizen. 

We subsequently ordered that Suryanto=s case be held in abeyance pending the 

adjudication of Suryanto=s Petition for Alien Relative (Form I-130). On December 

10, 2007, his I-130 relative visa petition was approved. On July 23, 2008, 

Suryanto filed a motion to reopen and remand his administrative proceedings to 

adjust his status. On October 16, 2008, the BIA denied the motion. On October 

30, 2008, Suryanto filed a petition for review of the BIA=s October 16, 2008 

decision. See C.A. No. 08-4342. We ordered that this case be consolidated for 

disposition with his previously-filed case (C.A. No. 06-1424). On October 22, 
3

2010, we denied both petitions for review. See Suryanto v. Att=y Gen., 2010 WL 

4146155, at *4 (3d Cir. Oct. 22, 2010). 

On August 17, 2009, following the two deadly hotel bombings in July 2009, 

in Jakarta, Indonesia, Suryanto filed a motion to reopen and remand based upon 

alleged changed country conditions in Indonesia. In support of his motion 

Suryanto submitted: (1) a web article from CNN.com reporting on the bombings; 

(2) the U.S. Department of State 2008 Human Rights Report for Indonesia; (3) 

the U.S. Department of State 2008 International Religious Freedom Report; and 

(4) an August 11, 2009 article from AsiaNews.it discussing remarks by 

Indonesian president Susilo Bambang Yudhoyono that Indonesia may face more 

terrorist attacks. A.R. 16-44. On September 24, 2009, the BIA denied the 

motion to reopen. The BIA found that the motion was both time and number 

barred under 8 C.F.R. ' 1003.2(c)(2). In addition, the BIA found that Suryanto=s 

Aconclusory claim of changed country conditions@ did not satisfy the exception to 

the timely filing requirement because it did not comply with the evidentiary 

requirements of 8 C.F.R. ' 1003.2(c)(1). A.R. 3. The BIA did not otherwise 

discuss its conclusion or specifically address any piece of evidence submitted by 

the petitioner.

Suryanto=s timely petition for review of the BIA=s September 24, 2009 

decision is now before the Court. 
4

II.

We have jurisdiction under 8 U.S.C. ' 1252, which grants federal courts of 

appeals jurisdiction to review final orders of the BIA. We review the BIA=s denial 

of a motion to reopen for an abuse of discretion, see Ying Liu v. Att=y Gen., 555 

F.3d 145, 148 (3d Cir. 2009), and review its underlying factual findings related to 

the motion for substantial evidence. Filja v. Gonzales, 447 F.3d 241, 251 (3d 

Cir. 2006). The BIA=s denial of a motion to reopen may be reversed only if the 

decision is Aarbitrary, irrational, or contrary to law.@ Rranci v. Att=y Gen., 540 

F.3d 165, 171 (3d Cir. 2008) (citations omitted). 

Motions to reopen must generally be filed with the BIA no later than 90 

days after the date of the final administrative decision in the proceeding sought to 

be opened. See 8 C.F.R. ' 1003.2(c)(2); see also Shardar v. Att=y Gen., 503 

F.3d 308, 313 (3d Cir. 2007). However, Athe 90-day limitation does not apply if 

the movant seeks reopening >based on changed circumstances arising in the 

country of nationality or in the country to which deportation has been ordered, if 

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

discovered or presented at the previous hearing.=@ Zheng v. Att=y Gen., 549 F.3d 

260, 265 (3d Cir. 2008) (quoting 8 C.F.R. ' 1003.2(c)(3)(ii)). 

III.
5

The issue before us is whether the BIA abused its discretion in denying 

Suryanto=s motion to reopen based on changed country conditions without 

explicitly addressing the evidence offered by the petitioner.1 Suryanto argues 

that the BIA abused its discretion by failing to consider the documentation he 

submitted in support of his motion to reopen. He relies on Zheng v. Attorney 

General, in which we found that the BIA abused its discretion by denying a 

petitioner=s motion to reopen without identifying or discussing all of the petitioner=s 

relevant evidentiary support. 549 F.3d at 268-69. 

Suryanto is correct that the BIA is required to Aactually consider the 

evidence and argument that a party presents.@ Id. at 266 (quoting Abdulai v. 

Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001)). However, this mandate does not 

require that the BIA Aexpressly parse or refute on the record each individual 

argument or piece of evidence offered by the petitioner.@ Id. at 268 (quoting 

Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006)). In particular, the BIA is not 

 

1

The BIA correctly determined that Suryanto=s August 17, 2009 motion to 

reopen was numerically barred, because Suryanto had previously filed a motion 

to reopen on July 23, 2008. See 8 C.F.R. ' 1003.2(c)(2). In addition, the BIA 

correctly concluded that Suryanto=s motion to reopen was untimely. The BIA 

issued a final order of removal in this case on July 25, 2005. Suryanto=s second 

motion to reopen was filed over four years later on August 17, 2009, clearly 

beyond the ninety day limitation set forth in 8 C.F.R. ' 1003.2(c)(2). Further, 

because Suryanto=s brief fails to address these findings, it appears that Suryanto 

has waived these issues on appeal. 
6

required to address evidence that is plainly immaterial. What is required is that 

the BIA consider all relevant evidence and provide an adequate basis from which 

we are able Ato discern its reasons for declining to afford relief to a petitioner.@ 

Id.; see also Huang v. Att=y Gen., 620 F.3d 372, 391 (3d Cir. 2010) (remanding 

where BIA failed to consider evidence that was both material and previously 

unavailable); Guo v. Gonzales, 463 F.3d 109, 115 (2d Cir. 2006) (finding an 

abuse of discretion where the BIA failed to consider documents that were 

Aself-evidently material@); Poradisova v. Gonzales, 420 F.3d 70, 81 (2d Cir. 2005) 

(holding that the BIA has a duty to explicitly consider country conditions evidence 

that Amaterially bears on his claim@) (emphasis added). The burden is on the 

petitioner to prove that the BIA did not review the record or consider material 

evidence. See Abdulai, 239 F.3d at 550.

Suryanto has not met that burden here. The BIA denied Suryanto=s 

motion to reopen because he failed to Acomply with the evidentiary requirements 

of 8 C.F.R. ' 1003.2(c)(1) as to the conclusory claim of changed country 

conditions.@ A.R. 3. This regulation holds that a motion to reopen Ashall not be 

granted unless it appears to the Board that evidence sought to be offered is 

material and was not available and could not have been discovered or presented 

at the former hearing.@ 8 C.F.R. ' 1003.2(c)(1). Although the four documents 
7

Suryanto submitted were not available at the time of his previous hearing, they 

are plainly immaterial to his claim that the July 2009 bombings in Jakarta have 

created changed country conditions for the petitioner. The two U.S. State 

Department reports Suryanto includes were published in 2008 and therefore 

demonstrate nothing about whether conditions in Indonesia changed following the 

bombings in 2009. The two internet articles he submitted attest to the fact of the 

bombings and the President=s anticipation that Indonesia may face more terrorist 

attacks in the future, but do not explain how the bombings are relevant to 

Suryanto or to his underlying asylum claim, which is based on his status as an 

ethnic Chinese Christian. There is no indication in the materials that the 

bombings were targeted at Christians in Indonesia, or that conditions in Indonesia 

had deteriorated in such a way that would provide a renewed ground for

Suryanto=s asylum claim. The BIA did not abuse its discretion in concluding that 

Suryanto=s evidence did not comply with 8 C.F.R. ' 1003.2(c)(1) because it did 

not meet the requisite standard of materiality. Suryanto has failed to 

demonstrate otherwise. See Sevoian v. Ashcroft, 290 F.3d 166, 175 (3d Cir. 

2002) (stating Athe prima facie case standard for a motion to reopen . . . requires 

the applicant to produce objective evidence showing a >reasonable likelihood= that 

he can establish [that he is entitled to relief]@). 

IV.
8

Based on the foregoing, we will deny the petition for review.