2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-11-2014

Fnu Evah v. Attorney General United States

Precedential or Non-Precedential: Non-Precedential

Docket 13-3149

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 13-3149

___________

FNU EVAH,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A097-703-347)

Immigration Judge: Honorable Charles M. Honeyman

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

February 6, 2014

Before: JORDAN, GREENBERG and VAN ANTWERPEN, Circuit Judges

(Opinion filed: February 11, 2014 )

___________

OPINION

___________

PER CURIAM

Petitioner Evah petitions for review of an order of the Board of Immigration 

Appeals (BIA) denying her motion to reopen. For the reasons detailed below, we will 
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deny the petition for review. 

Evah, a citizen of Indonesia, is a Christian of Chinese descent. She entered the 

United States on a visitor’s visa in August 2006, worked without receiving permission

from the government, and was charged with being removable under 8 U.S.C. 

§ 1227(a)(1)(C)(i) for failing to comply with the conditions of her admission. After some 

preliminary procedures not relevant here, Evah applied for asylum, withholding of 

removal, and protection under the Convention Against Torture (CAT).

On July 13, 2010, Evah appeared before an Immigration Judge (IJ). She testified 

that, in Indonesia, her store had been looted during an anti-Chinese riot, she had been 

beaten, her house had been burned down, and she had been threatened. The IJ denied all 

relief to Evah, concluding that she had failed to meet her respective burdens of proof for 

asylum, withholding of removal, and CAT relief. Evah then appealed to the BIA, which 

dismissed the appeal on December 22, 2011. The BIA concluded, as had the IJ, that 

Evah had failed to support her claims of past persecution with the requisite corroborating 

evidence. Further, the BIA held, Evah had not established that she had a well-founded 

fear of future persecution. Finally, the BIA ruled that Evah had failed to show that she 

was eligible for CAT relief. We then denied Evah’s petition for review. See Evah v. 

Att’y Gen., 485 F. App’x 583 (3d Cir. 2012). 

In April 2013, Evah filed the motion to reopen that is at issue here, alleging that 

the violence against Christians in Indonesia has increased. After considering the various 
3

documents that Evah had submitted — including reports from the Human Rights Watch, 

the United States Department of State, and the United States Commission on 

International Religious Freedom, as well as several newspaper articles — the BIA denied 

the motion, concluding that Evah’s evidence “show[ed] a continuation of the conditions 

that existed at the time of and for the two years leading up to [Evah’s] hearing before the 

[IJ],” rather than changed conditions. Evah then filed a timely petition for review to this 

Court.

We have jurisdiction under 8 U.S.C. § 1252(a)(1), and review the BIA’s denial of 

Evah’s motion to reopen for abuse of discretion. See Borges v. Gonzales, 402 F.3d 398, 

404 (3d Cir. 2005). Motions to reopen are “plainly disfavor[ed],” because “[t]here is a 

strong public interest in bringing litigation to a close as promptly as is consistent with the 

interest in giving the adversaries a fair opportunity to develop and present their respective 

cases.” INS v. Abudu, 485 U.S. 94, 107, 110 (1988). The BIA’s decision is thus entitled 

to “broad deference,” Ezeagwuna v. Ashcroft, 325 F.3d 396, 409 (3d Cir. 2003) 

(quotation marks omitted), and it “will not be disturbed unless [it is] found to be 

arbitrary, irrational, or contrary to law,” Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 

2004) (quotation marks omitted).

Here, because Evah did not file her motion to reopen within 90 days of the final 

order of removal, she may proceed only if her motion relies on evidence of “changed 

country conditions.” 8 U.S.C. § 1229a(c)(7)(C)(ii). Such a motion must be based on 
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“evidence [that] is material and was not available and would not have been discovered or 

presented at the previous proceeding.” Id. In determining whether country conditions 

have changed, the BIA compares current conditions to the conditions that existed at the 

time of the previous hearing before the IJ. See Filja v. Gonzales, 447 F.3d 241, 254 (3d 

Cir. 2006).

The BIA did not abuse its discretion in denying Evah’s motion. As an initial 

matter, there is no merit to Evah’s claim that the BIA failed fully to consider the evidence 

that she proffered. Unlike in the case Evah cites, Indradjaja v. Holder, 737 F.3d 212 (2d 

Cir. 2013), the BIA’s opinion here is thorough and plainly establishes that it analyzed all 

of the materials and arguments that Evah presented. See Khan v. Att’y Gen., 691 F.3d 

488, 499 (3d Cir. 2012). 

On the merits, it was reasonable for the BIA to conclude that Evah’s evidence, 

rather than showing that conditions for Christians in Indonesia have deteriorated in a 

material way since the time of her initial hearing, shows only “a continuation of the 

conditions.” As the BIA pointed out, the United States Commission on International 

Religious Freedom’s 2011 Report for Indonesia, for instance, describes Indonesia’s 

problems with religious tolerance as longstanding and notes that Indonesia has been on 

its watch list since 2002. Likewise, the Human Rights Watch reported that there were a 

similar number of religious attacks in 2011 and 2010. In its 2010 Report on Religious 

Freedom, the United States Department of State also recognized the religious strife as 
5

continuing, noting that “[t]he government generally respected religious freedom . . . ; 

however, ongoing restrictions . . . were exceptions.” Report at 1 (emphasis added). Thus, 

the BIA did not err in concluding that Evah had failed to demonstrate that conditions in 

Indonesia had changed in a meaningful way since her hearing before the IJ.

Evah argues that the BIA should have focused on the conditions in her home

province rather than country-wide. However, Evah did not make this argument before 

the BIA, and even in this Court, has not identified any evidence suggesting that 

conditions in her province have changed to a greater degree than conditions in Indonesia 

generally. Accordingly, the BIA did not abuse its discretion in denying Evah’s motion. 

See Pllumi v. Att’y Gen., 642 F.3d 155, 161 (3d Cir. 2011) (holding that the BIA did not 

err in denying reopening where evidence did “not indicate meaningfully changed country 

conditions,” but instead “suggest[ed] that the conditions described have persisted” 

(quotation marks omitted)).

Accordingly, we will deny the petition for review.