                                                                      F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                      October 5, 2006
                              FO R TH E TENTH CIRCUIT              Elisabeth A. Shumaker
                                                                       Clerk of Court



    Y O LD IE FER RY U MB O H ,

                Petitioner,

    v.                                                   No. 06-9500
                                                      (No. A95-554-885)
    ALBERTO R. GONZA LES,                            (Petition for Review)
    Attorney General,

                Respondent.



                              OR D ER AND JUDGM ENT *


Before HA RTZ, HOL LOW A Y, and BALDOCK , Circuit Judges.


         Yoldie Ferry Umboh is a native and citizen of Indonesia. He petitions for

review of a decision from the Board of Immigration Appeals (BIA) denying his

motion to reopen. M r. Umboh sought to reopen his immigration proceedings

based on ineffective assistance of counsel and changed circumstances. The BIA




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
concluded that M r. Umboh failed to demonstrate that he was prejudiced by his

representatives’ 1 deficient performance. The BIA also determined that

M r. Umboh had not demonstrated that reopening was warranted based on changed

circumstances. W e have jurisdiction to review the BIA’s decision under 8 U.S.C.

§ 1252(a) and we affirm.

                                    Background

      M r. Umboh applied for asylum, withholding of removal, protection under

the Convention Against Torture (CAT) and voluntary departure. After a hearing

on the application, the Immigration Judge (IJ) found that M r. Umboh was

statutorily barred from qualifying for asylum because he did not apply within one

year of entering the United States and did not demonstrate exceptional

circumstances or changed country conditions to exempt him from the filing

deadline.

      The IJ noted that even if M r. Umboh was not time-barred from being

considered for asylum, he had not established the requisite level of persecution.

The IJ expressed doubts about M r. Umboh’s claim that he had been beaten in

1994, considering his failure to mention the beating in his asylum application, but

stated that even assuming that the beating occurred, M r. Umboh had only show n

harassment and not persecution. Because M r. Umboh could not meet his burden

1
      In this decision, the term “representatives” refers to the persons that were
chosen by M r. Umboh as his representatives. Neither of these representatives
were actually attorneys.

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of establishing his eligibility for asylum, the IJ concluded that M r. Umboh had

likewise fallen short of meeting the higher burden for withholding of removal or

protection under the CAT. Finally, the IJ denied M r. Umboh’s request for

voluntary departure noting that M r. Umboh had been equivocal as to whether he

would actually depart.

      The BIA affirmed the IJ’s decision on June 13, 2005. M r. Umboh did not

file a petition for review of that decision. Instead, in August 2005, he filed a

m otion to reopen alleging ineffective assistance of counsel by his two

representatives. In its decision denying the motion, the BIA addressed each of

M r. Umboh’s contentions and explained how M r. Umboh had not demonstrated

that he was prejudiced by any of the representatives’ alleged deficiencies.

Because M r. Umboh had not suffered any prejudice, he was not entitled to have

the proceedings reopened.

      The BIA also addressed M r. Umboh’s assertion that reopening was

warranted based on new circumstances. The BIA noted that “[t]o warrant

reopening, the evidence of changed circumstances must be material and must have

been unavailable, undiscoverable, or unpresentable at the previous hearing.”

Admin. R. at 4 (quoting 8 C.F.R. § 1003.2(c)(3)(ii)). The BIA concluded that:

“The circumstances asserted by respondent are not indicative of a material

change . . . . Rather, they indicate that Indonesia’s long and unfortunate history

of interreligious violence and discrimination continues.” Id.


                                          -3-
      M r. Umboh filed a timely petition for review from the BIA’s denial of his

motion to reopen.

                                     Discussion

      In portions of M r. Umboh’s brief, he appears to challenge the BIA’s

June 13, 2005 order affirming the IJ’s decision. See, e.g., Petitioner’s Brief at 21.

W e lack jurisdiction to review the BIA’s June 13, 2005 decision because

M r. Umboh did not file a timely petition for review from that decision as required

by 8 U.S.C. § 1252(b)(1). See Infanzon v. Ashcroft, 386 F.3d 1359, 1361 (10th

Cir. 2004); Nahatchevska v. Ashcroft, 317 F.3d 1226, 1227 (10th Cir. 2003).

      M r. Umboh did timely file a petition for review of the BIA’s December 7,

2005 decision denying his motion to reopen. Admin. R. 000002-000004. W e

review that decision for abuse of discretion. 2 See Osei v. INS, 305 F.3d 1205,

1208 (10th Cir. 2002); 8 C.F.R. § 1003.2(a) (providing that “[t]he decision to

grant or deny a motion to reopen or reconsider is within the discretion of the

[BIA]”). “An abuse of discretion may be found in those circumstances where the

[BIA’s] decision provides no rational explanation, inexplicably departs from


2
       M r. Umboh asserts that this court should review this decision de novo
because he is asserting a constitutional challenge. In support, he relies on
8 U .S.C. § 1252(a)(D)(2). M r. Umboh’s argument mixes apples and oranges.
Section 1252(a)(D)(2) addresses the scope of this court’s jurisdiction to review
certain discretionary decisions that involve constitutional challenges, but does not
address the standard of review for cases involving those challenges. There has
been no change in the law of this circuit regarding the standard of review for a
motion to reopen involving an ineffective assistance of counsel claim. See Osei v.
INS, 305 F.3d 1205, 1208 (10th Cir. 2002).

                                         -4-
established policies, is devoid of any reasoning, or contains only summary or

conclusory statements.” Osei, 305 F.3d at 1208 (quotation omitted). Here on the

contrary, having review ed the decision, the briefs, the record, and the applicable

law pursuant to the above-mentioned standard, we conclude that the BIA did not

abuse its discretion in denying M r. Umboh’s motion to reopen. Admin. R. at

000004.

      The decision of the B IA is AFFIRMED.

                                                     Entered for the Court


                                                     W illiam J. Holloway, Jr.
                                                     Circuit Judge




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