                                                                   NOT PRECEDENTIAL

                           UNITED STATES COURT OF APPEALS
                                FOR THE THIRD CIRCUIT
                                     ___________

                                         No. 09-2791
                                         ___________

                                       MAXIE SEPANG,
                                                           Petitioner

                                               v.

                     ATTORNEY GENERAL OF THE UNITED STATES,
                                                  Respondent
                        ____________________________________

                          On Petition for Review of an Order of the
                                Board of Immigration Appeals
                                 (Agency No. A079-708-173)
                        Immigration Judge: Honorable Eugene Pugliese
                         ____________________________________

                        Submitted Pursuant to Third Circuit LAR 34.1(a)
                                        April 14, 2010

              Before: BARRY, STAPLETON and NYGAARD, Circuit Judges

                                (Opinion filed: April 27, 2010)
                                          _________

                                            OPINION
                                           _________

PER CURIAM

       Maxie Sepang petitions for review of an order of the Board of Immigration Appeals

(“BIA”) from an Immigration Judge’s (“IJ”) decision denying his motion to reopen his

immigration proceedings. For the reasons that follow, we will deny the petition for review.

                                               I.
       Sepang, a citizen of Indonesia, entered the United States on a non-immigrant visa in

1994, and stayed longer than permitted. In April 2003, the government instituted removal

proceedings against Sepang. Sepang conceded removability and applied for withholding of

removal and relief under the Convention Against Torture.1 At a merits hearing, Sepang testified

that he could not return to Indonesia because the Indonesian government fails to protect

Christians who are attacked by Muslims. In a decision issued in March 2004, the IJ concluded

that Sepang failed to establish that it was more likely than not that he would either be tortured or

have his life or freedom threatened; the IJ denied Sepang’s applications for relief and ordered

him excluded. In an order dated August 22, 2005, the BIA affirmed, noting that violence against

Christians in Indonesia takes place in specific regions, and that Sepang could avoid the violence

by moving to parts of Indonesia where Christians are not in danger. Sepang did not file a petition

for review in this Court.

       In October 2005, Sepang, through counsel, filed a motion to reopen on the grounds that

the conditions in Indonesia had changed and alleging legal error in the IJ and BIA decisions. The

BIA construed the motion as a motion to reconsider and rejected it as time barred. In December

2005, Sepang filed a second motion to reconsider the BIA’s denial of his earlier motion to

reopen. Because Sepang submitted additional evidence regarding changed country conditions in

Indonesia with his motion, the BIA construed the motion as a motion to reopen. The BIA

concluded that the changed circumstances did not warrant reopening. In August 2006, Sepang,




       1
        Sepang originally filed for asylum as well; however, his attorney conceded at the
merits hearing that Sepang was ineligible for asylum because it was well over one year
since he had entered the United States. See 8 U.S.C. § 1158(a)(2)(B).

                                                 2
acting pro se, filed a third motion to reopen. Sepang argued that he was a member of an

organization that had submitted special legislation to Congress that, if passed, would grant

Sepang permanent residency. The BIA again denied the motion, rejecting it as time and number

barred.

          Sepang returned to the BIA in January 2009 with a fourth motion to reopen, this time

seeking equitable tolling of the filing restrictions because of ineffective assistance of counsel.

Sepang asserted that the attorney who had represented him during his initial appearance before

the IJ and the BIA, and during his first two motions to reopen, had not diligently pursued an

asylum claim and failed to present evidence about country conditions. Additionally, he claimed

that his attorney had improperly filed motions to reopen and reconsider. Given these

circumstances, Sepang requested that the BIA reopen his proceedings. The BIA again denied the

motion as time and number barred, noting that equitable tolling was not available as Sepang did

not comply with the procedural requirements for filing an ineffective assistance of counsel claim,

as set forth in Matter of Lozada, 191 I. & N. Dec. 637 (BIA 1988). The BIA further found that,

since the IJ’s 2003 decision, conditions in Indonesia had not changed to the extent that would

warrant reopening Sepang’s case. Sepang filed a timely petition for review.

                                                  II.

          We have jurisdiction over the petition for review pursuant to 8 U.S.C. § 1252. We

review the BIA’s findings of fact for substantial evidence and the denial of the motion to reopen

for abuse of discretion. See Sevoian v. Ashcroft, 290 F.3d 166, 170 (3d Cir. 2002). The BIA’s

decision is entitled to “broad deference.” Ezeagwuna v. Ashcroft, 325 F.3d 396, 409 (3d Cir.

2003). Thus, in order to succeed on the petition for review, Sepang must show that the BIA’s


                                                  3
discretionary decision was arbitrary, irrational, or contrary to law. See Tipu v. INS, 20 F.3d 580,

582 (3d Cir. 1994) (quotation omitted). Sepang has failed to make such a showing.

                                                III.

       In the interest of finality, a motion to reopen generally “shall be filed within 90 days of

the date of entry of a final administrative order of removal.” 8 U.S.C. § 1229a(c)(7)(C)(i); see

also 8 U.S.C. § 1229a(c)(7)(A) (an alien may file one motion to reopen). In this case, Sepang

filed his fourth motion to reopen over three years after the BIA’s decision. Under some

circumstances, equitable tolling is available for a motion to reopen. See Borges v. Gonzales, 402

F.3d 398, 406 (3d Cir. 2005). Sepang alleged ineffective assistance of counsel, which can serve

as a basis for equitable tolling, if substantiated, and if accompanied by a showing of due

diligence. See Mahmood v. Gonzales, 427 F.3d 248, 252 (3d Cir. 2005). However, to rely on an

ineffective assistance of counsel claim to toll a time limit, the BIA requires an alien to comply

with the procedural requirements of Lozada, a requirement that we have held to be reasonable.

Lu v. Ashcroft, 259 F.3d 127, 129 (3d Cir. 2001). Sepang did not include a detailed statement

setting forth what his attorney agreed to do, nor did he indicate that he had given his attorney an

opportunity to respond to these charges. Furthermore, he did not show that he had reported his

attorney for disciplinary action. In short, Sepang did not comply with any of the Lozada

requirements. See Lozada, 19 I. & N. at 639.

       Because Sepang’s motion was untimely, his motion had to be based on changed country

conditions in Indonesia. See 8 C.F.R. § 1003.2(c)(3)(ii) (90 day time limitation does not apply if

the alien seeks reopening “based on changed circumstances arising in the country of nationality .

. . if such evidence is material and was not available and could not have been discovered or


                                                 4
presented at the previous hearing.”) We conclude, however, that the BIA did not abuse its

discretion in denying his untimely motion to reopen because Sepang did not make the required

showing. Sepang based his allegation of changed circumstances arising in Indonesia, and his

assertion that his evidence was material to his claim of persecution, on the State Department

International Freedom Reports for 2004 and 2007. Neither of the Reports show that conditions

of widespread persecution against Christians in Indonesia have changed since Sepang’s

immigration hearing in 2004 such to warrant reopening. See Sioe Tjen Wong v. Att’y Gen., 539

F.3d 225, 233-34 (3d Cir. 2008). Thus, Sepang has not shown the BIA’s decision to deny his

motion to reopen was arbitrary, irrational, or contrary to law.

       For the above reasons, we will deny the petition for review.




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