                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-7-2008

Kustianto v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3988




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                                                                NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT


                                   No. 06-3988


                             RIDWAN KUSTIANTO

                                                   Petitioner

                                        v.

                           ATTORNEY GENERAL OF
                            THE UNITED STATES,

                                                   Respondent




                        On Petition for Review of an Order
                       of the Board of Immigration Appeals
                                (No. A95-963-739)
                     Immigration Judge: Hon. Eugene Pugliese


                    Submitted Under Third Circuit LAR 34.1(a)
                                March 14, 2008

     Before: FUENTES, CHAGARES, and VAN ANTWERPEN, Circuit Judges

                           (Opinion filed: May 7, 2008)


                                    OPINION


CHAGARES, Circuit Judge

     Ridwan Kustianto petitions for review of the Board of Immigration Appeals’
(“BIA”) order of August 14, 2006, denying his motion to reopen. For the reasons given

below, his petition will be denied.

                                             I.

       Kustianto, an ethnic Chinese Christian who resided in Indonesia, entered the

United States as a business visitor on August 11, 2000. Although authorized to stay only

until August 20, 2000, Kustianto remained in this country after that date. On April 8,

2003, the Department of Homeland Security (DHS) initiated removal proceedings against

Kustianto by serving him a Notice to Appear.

       At a May 3, 2003 hearing before an Immigration Judge (IJ), Kustianto conceded

removability. He applied for asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”), arguing that he would be subject to persecution

and torture in Indonesia on account of his Christian faith. At a November 24, 2004 merits

hearing, the IJ found Kustianto failed to file his asylum application within the one-year

time period mandated by 8 U.S.C. § 1158(a)(2)(B) (and failed to establish changed or

extraordinary circumstances to excuse the failure), and therefore was ineligible for

asylum. The IJ also found that Kustianto failed to meet his burden of establishing either

withholding of removal eligibility or eligibility under the CAT. The IJ therefore ordered

Kustianto’s removal.

       Kustianto appealed, and the BIA affirmed on February 8, 2006. Kustianto did not

seek judicial review of the BIA’s decision. Rather, on June 2, 2006 – 114 days after the



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BIA’s action – he moved for reopening. On August 14, 2006, the BIA denied that motion

as not timely filed. The BIA held that the evidence Kustianto submitted did not

demonstrate the “changed country conditions” necessary to excuse his failure to file

within the 90-day period mandated by 8 C.F.R. § 1003.2(c)(2). Kustianto has timely

petitioned this Court for review of the BIA’s August 14, 2006 order.

                                              II.

       We review the denial of a motion to reopen for abuse of discretion, “mindful of the

broad deference that the Supreme Court would have us afford.” Ezeagwuna v. Ashcroft,

325 F.3d 396, 409 (3d Cir. 2003) (internal quotation marks omitted). Under this standard,

the BIA’s decision will be reversed only “if it is arbitrary, irrational, or contrary to law.”

Sevoian v. Ashcroft, 290 F.3d 166, 175 (3d Cir. 2002) (internal quotation marks omitted).

                                              III.

       A motion to reopen “shall not be granted unless it appears to the Board that

evidence sought to be offered . . . was not available and could not have been discovered

or presented at the former hearing.” Caushi v. Att’y Gen., 436 F.3d 220, 231 (3d Cir.

2006). Moreover, such motions must be filed within ninety days of the BIA’s decision.

See 8 C.F.R. § 1003.2(c)(2). As noted, Kustianto did not file his motion to reopen until

114 days after the BIA’s decision, rendering it untimely.

       The time-bar of § 1003.2(c)(2) does not apply, however, if the alien seeks to admit

material evidence of “changed circumstances arising in the country of nationality or in the



                                               3
country to which deportation has been ordered,” which “was not available and could not

have been discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii).

       Kustianto contends that the BIA abused its discretion because it refused to

consider the evidence he submitted in support of his motion on the ground that the

evidence was time-barred. He claims that the BIA acted irrationally and arbitrarily

because the evidence he sought to offer, namely letters from his father, sister, and a

family friend, “is material and was not available and could not have been discovered or

presented at the former hearing.” (Petitioner’s Br. at 9.)

       Kustianto’s argument fails for two reasons. First, contrary to the assertion in his

brief to this Court, Kustianto testified at his November 24, 2004 hearing that he was in

contact with his family in Indonesia, and discussed with them the conditions in that

country. Therefore, he has not demonstrated that the material in the three letters he now

seeks to admit was “not available” or “could not have been discovered or presented” at

the November 24, 2004 hearing. 8 C.F.R. § 1003.2(c)(3)(ii). Second, nothing in the

letters evinces “changed circumstances” in Indonesia – rather, the letters demonstrate

only a continuation of exactly the types of problems that Kustianto complained of in his

application for asylum, withholding of removal, and CAT relief. Accordingly, the letters

are not sufficient grounds for considering an untimely motion to reopen.

                                             IV.

       For the reasons set forth above, we will deny Kustianto’s petition for review.



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