12-1148 (L)

Kowengian v. Holder

BIA

Hom, IJ 

A098 769 469

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.

At a stated term of the United States Court of Appeals

for the Second Circuit, held at the Thurgood Marshall United

States Courthouse, 40 Foley Square, in the City of New York,

on the 13th day of September, two thousand thirteen.

PRESENT:

PETER W. HALL,

DENNY CHIN,

CHRISTOPHER F. DRONEY,

Circuit Judges. 

_____________________________________

FERY KOWENGIAN,

Petitioner

 v. 12-1148 (L);

12-1151 (Con),

12-1152 (Con)

NAC 

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL,

Respondent.

_____________________________________

FOR PETITIONER: Jay Ho Lee, New York, New York.

FOR RESPONDENT: Stuart F. Delery, Acting Assistant

Attorney General; Linda S. Wernery,

Assistant Director; Gerald M.
Alexander, Trial Attorney, Office of

Immigration Litigation, Civil

Division, United States Department

of Justice, Washington, D.C.

UPON DUE CONSIDERATION of these petitions for review of

decisions of the Board of Immigration Appeals (“BIA”), it is

hereby ORDERED, ADJUDGED, AND DECREED that the petitions for

review are DENIED.

Petitioner, Fery Kowengian, a native and citizen of

Indonesia, seeks review of the BIA’s November 4, 2009

decision denying his motion to reopen and the BIA’s October

30, 2008 decision denying his motion to reopen and for

reconsideration, and the BIA’s April 30, 2008 decision

affirming the April 2, 2007 decision of Immigration Judge

(“IJ”) Sandy K. Hom denying his application for asylum,

withholding of removal, and relief under the Convention

Against Torture (“CAT”). In re Fery Kowengian, No. A098 769

469 (B.I.A. Nov. 4, 2009); In re Fery Kowengian, No. A098

769 469 (B.I.A. Oct. 30, 2008); In re Fery Kowengian, No.

A098 769 469 (B.I.A. Apr. 30, 2008), aff’g No. A098 769 469

(Immig. Ct. N.Y. City Apr. 2, 2007). We assume the parties’

familiarity with the underlying facts and procedural history

of the case.

I. Petition for Review Under Docket Number 12-1148

We have reviewed the BIA’s decisions and the IJ’s

decision as supplemented by the BIA. See Yan Chen v.

Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable

standards of review are well-established. See 8 U.S.C.

§ 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513

(2d Cir. 2009). 

Although Kowengian does not challenge, and we thus do

not consider, the IJ’s denial of CAT relief or the finding

that Kowengian failed to establish past persecution, he

argues that he demonstrated a well-founded fear of future

persecution based on a pattern or practice of persecution of

Christians in Indonesia. To establish such a pattern or

practice of persecution against a particular group, a

petitioner must demonstrate that the harm to that group

constitutes persecution, is perpetrated or tolerated by

2
state actors, and is “so systemic or pervasive as to amount

to a pattern or practice of persecution.” In re A-M-, 23 I.

& N. Dec. 737, 741 (BIA 2005); see Mufied v. Mukasey, 508

F.3d 88, 93 (2d Cir. 2007) (accepting the BIA’s standard as

a reasonable one, while noting that “[w]ithout further

elaboration [the standard does not make clear] how systemic,

pervasive, or organized persecution must be before the Board

would recognize it as a pattern or practice”).

According to the State Department’s 2006 Country Report

and International Religious Freedom Report relied on by

Kowengian, attacks on churches occurred with little to no

resistance from police, and shari’a laws were increasingly

adopted by regional governments. However, those reports

note significant efforts by the Indonesian government to

mitigate the tension between Muslims and Christians and that

the shari’a laws were enforced only against Muslims. 

Moreover, a 2005 State Department Issue Paper provides that

“in most parts of Indonesia, people are generally able to

worship as they wish with no interference from the state or

their neighbors of other faiths.”

Because these reports indicate that the sporadic

interreligious violence did not affect all provinces of

Indonesia, and Kowengian testified that he lived near

predominately Chinese Christian communities, the IJ

reasonably found that he failed to meet his burden of

showing that he could not safely relocate within Indonesia. 

That finding undermined Kowengian’s proof of fear of

persecution. See 8 C.F.R. § 1208.13(b)(3)(i). The IJ also

reasonably found that the lack of evidence that Kowengian’s

wife, who lives in Indonesia, is ethnic Chinese, and

practices Christianity, has been harmed or targeted further

undercut Kowengian’s proof of fear of future persecution. 

See Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir.

1999) (finding that asylum applicant’s fear of future

persecution was diminished when similarly-situated relatives

continued to live in applicant’s native country without

harm). Given the isolated nature of the interreligious

violence, the IJ reasonably found that the harm Christians

suffered was not so severe and pervasive to constitute a

pattern or practice of persecution. See Santoso v. Holder,

580 F.3d 110, 111-12 (2d Cir. 2009) (upholding agency’s

rejection of pattern or practice claim when background

3
materials noted only sporadic religious violence against

Christians in Indonesia). 

Because Kowengian was unable to show the objective

likelihood of persecution needed to make out an asylum

claim, he was necessarily unable to meet the higher standard

required to succeed on a claim for withholding of removal. 

See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

II. Petition for Review Under Docket Numbers 12-1151 and

12-1152

12-1151. Because Kowengian explicitly declines to

challenge the BIA’s denial of his first motion to reopen and

reconsider, the petition for review docketed under 12-1151

is denied.

12-1152. The BIA’s denial of Kowengian’s second motion

to reopen as untimely was not an abuse of discretion. See

Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam). 

An alien may file one motion to reopen, generally no later

than 90 days after the date on which the final

administrative decision was rendered in the proceedings

sought to be reopened. 8 U.S.C. §§ 1229a(c)(7)(A), (C)(i);

8 C.F.R. § 1003.2(c)(2). There is no dispute that

Kowengian’s May 2009 motion was untimely, as his final

administrative order was issued in April 2008. See 8 U.S.C.

§ 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). The time

limitation does not apply to a motion to reopen, however, if

it is “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.” 8 C.F.R. § 1003.2(c)(3)(ii); see

also 8 U.S.C. § 1229a(c)(7)(C)(ii).

The BIA reasonably concluded that Kowengian failed to

establish changed circumstances for ethnic Chinese

Christians in Indonesia. Contrary to Kowengian’s argument,

his evidence, which included an expert affidavit and various

articles, was cumulative of evidence presented at his merits

hearing, which also addressed sporadic attacks on churches

and the passage of shari’a laws. The BIA also reasonably

found that this evidence did not demonstrate that there had

4
been a material change in the treatment of Christians and

ethnic Chinese in Indonesia because: (1) the expert

affidavit asserted that a change was likely to occur but had

not yet occurred; and (2) evidence of increased support of

radical Islam and economic and political instability as the

possible impetus for a future pogrom did not prove that

Christians or ethnic Chinese currently were being harmed in

Indonesia. See 8 C.F.R. § 1003.2(c)(3)(ii); Jian Hui Shao

v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008) (reviewing the

BIA’s factual findings under the substantial evidence

standard). 

Because the evidence Kowengian submitted was

insufficient to establish a change in country conditions, he

failed to meet an exception to the filing deadline. The BIA

did not abuse its discretion in denying his motion as

untimely. See 8 U.S.C. § 1229a(c)(7)(C)(i), (ii); 8 C.F.R.

§ 1003.2(c)(2), (3). 

For the foregoing reasons, the petitions for review are

DENIED.

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk

5