Not for Publication in West’s Federal Reporter

United States Court of Appeals

For the First Circuit

No. 07-2623

EDDY SUNARNO,

Petitioner,

v.

MICHAEL B. MUKASEY, ATTORNEY GENERAL,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER

OF THE BOARD OF IMMIGRATION APPEALS

Before

 Lynch, Chief Judge, 

Boudin and Lipez, Circuit Judges.

Cindy S. Chang for petitioner.

Samia Naseem, Trial Attorney, Office of Immigration

Litigation, Gregory G. Katsas, Acting Assistant Attorney General,

Civil Division, and Linda S. Wendtland, Assistant Director, Office

of Immigration Litigation, on brief for respondent. 

September 25, 2008
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Per Curiam. Petitioner Eddy Sunarno, a native and

citizen of Indonesia, seeks review of a decision of the Board of

Immigration Appeals (BIA) denying his motion to reopen his

immigration proceedings, which consisted of applications for

asylum, withholding of removal, and relief under the Convention

Against Torture (CAT). Sunarno, who is Catholic, alleges that he

was persecuted by Indonesian Muslims on account of his religion.

We deny the petition.

I.

At a hearing before an Immigration Judge (IJ), Sunarno

provided the following testimony. He was born in Indonesia in

1957, and was baptized as a Catholic in 1986. On August 7, 1992,

he was on his way to the central market when he was followed and

stopped by two Muslim men who demanded to see his identification

card (which listed his address and identified him as a Catholic).

These men threatened to kill Sunarno and his family if he refused

to convert to Islam.

Several days later, in the middle of the night on August

13, 1992, two men who he believed were the earlier assailants set

fire to the convenience store that he owned and operated. Sunarno

testified that when the convenience store burned down, he lost

$600,000, but that he did not report the fire and the loss to the
 Petitioner's asylum application also indicates that while 1

he and his family watched the store burn down from his nearby home,

his father collapsed and died. Petitioner did not mention

witnessing the store's destruction or the death of his father

during his direct testimony before the IJ, and when cross-examined

by the government's attorney, he stated that he had forgotten these

facts. 

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authorities. Petitioner then moved to Jakarta and experienced no 1

further violence during his two remaining years in Indonesia. 

Sunarno entered the United States on March 18, 1994 as a

non-immigrant visitor authorized to remain in the country through

September 17, 1994. In a Notice to Appear issued on April 21,

2003, the Department of Homeland Security (DHS) charged petitioner

as removable under 8 U.S.C. § 1227(a)(1)(B) as an alien who had

overstayed his visa. On October 13, 2003, he filed an asylum

application with the former INS. 

At a hearing in July 2005, Sunarno conceded removability,

but renewed his request for relief in the form of asylum,

withholding of removal, and protection under the CAT.

In an oral decision, the IJ ruled that, because Sunarno

had failed to apply for asylum within one year of his arrival in

the United States, as required by 8 U.S.C. § 1158(a)(2)(B)(2002),

his request for asylum was time-barred. Additionally, the IJ found

that petitioner did not qualify for any of the exceptions to the

one-year filing deadline. With respect to his CAT and withholding

of removal claims, the IJ made several adverse credibility findings

and ruled that Sunarno had failed to establish that it was more
 Although his motion to reopen also alleged a due process 2

violation based on a problem with the interpreter at his hearing,

Sunarno failed to mention this argument in the brief submitted to

this court, and it has therefore been waived. Nikijuluw v.

Gonzales, 427 F.3d 115, 120 n.3 (1st Cir. 2005). 

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likely than not that he would suffer persecution or torture upon

his return to Indonesia.

The BIA did not address the IJ's credibility

determination, but upheld the IJ's ruling that Sunarno's asylum

claim was time-barred and affirmed the denial of his CAT and

withholding of removal claims. Sunarno did not petition this court

for review of that decision.

Instead, he filed a motion to reopen, seeking to submit

additional testimony and evidence relevant to his claims. This 2

"new" evidence consisted mainly of newspaper articles documenting

the prejudice and violence that Christians in Indonesia experienced

at the hands of Muslim extremists. The Board denied petitioner's

motion to reopen, finding that the articles were insufficient to

establish a pattern or practice of persecution of Christians and

"[did] not demonstrate that conditions ha[d] worsened for

Christians in Indonesia such that the respondent would now be able

to show a clear probability that he would be persecuted in his

country of origin on account of his religion."

II. 

We review the denial of a motion to reopen for abuse of

discretion. Raza v. Gonzales, 484 F.3d 125, 127 (1st Cir. 2007).
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Because motions to reopen implicate significant policy concerns, we

must give substantial deference to the Board's decisions on such

requests. See, e.g., Beltre-Veloz v. Mukasey, 533 F.3d 7, 9 (1st

Cir. 2008) (explaining that motions to reopen are disfavored in

light of the strong public interest in finality and speedy

processing of claims); Lemus v. Gonzales, 489 F.3d 399, 401 (1st

Cir. 2007). Accordingly, "we will uphold a denial of a motion to

reopen unless we conclude that the BIA either committed a material

error of law or exercised its authority in an arbitrary,

capricious, or irrational manner." Beltre-Veloz, 533 F.3d at 9. 

To succeed on a motion to reopen, petitioner must state

"new facts that will be proven at a hearing to be held if the

motion is granted." 8 C.F.R. § 1003.2(c)(1); see also Kechichian

v. Mukasey, 535 F.3d 15, 22 (1st Cir. 2008). A motion to reopen

must be denied unless the new evidence "establish[es] a prima facie

case sufficient to ground a claim of eligibility for the underlying

substantive relief." Raza, 484 F.3d at 128. We address

petitioner's claims for withholding of removal and relief under the

CAT in turn.

An alien applying for withholding of removal must show

that it is "more likely than not" that either he will be singled

out for persecution upon return to his country of origin, 8 C.F.R.

§ 1208.16(b)(2), or that there is a "pattern or practice" in his
 Indeed, in recent decisions, we have noted an improvement 3

in conditions for Indonesian Christians and an "advance in interreligious tolerance." See, e.g., Datau, 2008 WL 3917134, at *3;

Nikijuluw v. Gonzales, 427 F.3d 115, 119, 122 (1st Cir. 2005). 

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home country of persecution of a group with which he identifies.

Id. Sunarno made no such showing in this case. 

In his brief before this court, petitioner does not even

attempt to prove that he would be singled out for persecution in

Indonesia. Instead, he makes a cursory reference to an alleged

"pattern or practice" of discrimination against Christians in

Indonesia and draws the unsupported conclusion that "for sure [he]

would be persecuted on account of his religion" if forced to

return. However, the Board reasonably determined that the

additional evidence submitted by Sunarno in connection with his

motion to reopen was insufficient for a prima facie showing of

eligibility for relief.

This court has "repeatedly held that 'discrimination in

Indonesia does not, without more, qualify a Christian Indonesian

national for asylum.'" Datau v. Mukasey, ___ F.3d ___, 2008 WL

3917134, at *3 (1st Cir. Aug. 27, 2008) (quoting Sombah v.

Mukasey, 529 F.3d 49, 51 (1st Cir. 2008)); see also Pulisir v.

Mukasey, 524 F.3d 302, 308-09 (1st Cir. 2008); Kho v. Keisler, 505

F.3d 50, 58 (1st Cir. 2007). The new evidence submitted along 3

with petitioner's motion to reopen did not establish anything

"more" than isolated incidents of such discrimination. As the
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Board noted, the new evidence, which consisted mainly of news

articles about specific crimes in Indonesia, merely indicated that

"Muslim extremists continue to carry out terrorist attacks and that

Christians are sometimes targeted for violence." Petitioner did

not establish a change in country conditions that would have

allowed him to prove that, if returned to Indonesia, he was more

likely than not to be persecuted as part of a general pattern or

practice. Therefore, his claim for withholding of removal must

fail.

In order to qualify for relief under the CAT, an alien

must show that it is more likely than not that he would be tortured

upon return to his country. 8 C.F.R. § 1208.16(b)(2); Jamal v.

Mukasey, 531 F.3d 60, 66 (1st Cir. 2008). The new evidence in

Sunarno's motion to reopen was plainly insufficient to establish a

prima facie case for relief under the CAT. In any event, because

petitioner's brief does not make any argument about his eligibility

for relief under the CAT, the issue has been waived.

Petition denied.