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


1-9-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3416




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                                                             NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 06-3416


                             NO GIVEN NAME DENY;
                            NO GIVEN NAME IRWANTO,

                                                      Petitioners

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES
                             _____________

                     On Petition for Review of a Final Order of the
                             Board of Immigration Appeals
                            Agency No. A96-253-558, 559
                        Immigration Judge: Charles Honeyman
                                     ____________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                 on January 8, 2008
                                   ____________

           Before: FISHER, HARDIMAN AND ALDISERT, Circuit Judges
                             (Filed: January 9, 2008)



                                       OPINION


ALDISERT, Circuit Judge

      No Given Name Deny and No Given Name Irwanto petition this Court for review

of the Board of Immigration Appeal’s denial of their motion to reopen their removal
proceedings. On January 11, 2006, the BIA adopted and affirmed the Immigration

Judge’s denial of their applications for asylum, withholding of removal and relief under

the Convention Against Torture. Petitioners did not file a petition for review of the BIA’s

decision in this Court. On April 6, 2006, Petitioners filed a motion to reopen their

immigration proceedings with the BIA, and the BIA denied the motion on June 15, 2006.

We will deny the petition for review.

       We review the BIA’s denial of the motion to reopen for abuse of discretion. INS v.

Doherty, 502 U.S. 314, 323 (1992). This Court disfavors motions to reopen immigration

proceedings “because ‘as a general matter, every delay works to the advantage of the

[removable] alien who wishes merely to remain in the United States.’” Lu v. Ashcroft,

259 F.3d 127, 131 (3d Cir. 2001) (quoting Doherty, 502 U.S. at 323). The Supreme Court

has noted that the granting of “such motions too freely will permit endless delays of

[removal] by aliens creative and fertile enough to continuously produce new and material

facts sufficient to establish a prima facie case” for relief. INS v. Abudu, 485 U.S. 94, 108

(1988). Accordingly, the BIA’s denial of a motion to reopen will be upheld unless it was

arbitrary, irrational or contrary to law. Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004).

       In their motion to reopen, Petitioners state that various documents detailing the

worsening situation for Chinese Christians in Indonesia were attached to it. The BIA,

however, did not receive such documents and therefore did not abuse its discretion by not

considering those documents. Petitioners also submitted this Court’s decision in

Sukwanputra v. Gonzales, 434 F.3d 627 (3d Cir. 2006), as new evidence of a pattern of

                                             2
persecution in Indonesia. The BIA did not abuse its discretion in determining that

Sukwanputra was not persuasive. In Sukwanputra, this Court specifically stated that it

was “not hold[ing] that a pattern or practice of persecution in Indonesia in fact exists.” Id.

at 637 n.10. Therefore the BIA did not abuse its discretion in declining to view

Sukwanputra as new evidence warranting the reopening of Petitioners’ immigration

proceedings.

       We conclude that the BIA properly denied Petitioners’ motion to reopen because

Petitioners have not met their heavy evidentiary burden. The BIA determined that the

outcome of Petitioners’ removal proceedings would be the same if the proceedings were

reopened and the proffered new evidence presented. See Matter of Coelho, 20 I. & N.

Dec. 464, 473 (BIA 1992) (“[T]he Board ordinarily will not consider a discretionary grant

of a motion to remand unless the moving party meets a ‘heavy burden’ and presents

evidence of such a nature that the Board is satisfied that if proceedings before the

immigration judge were reopened, with all the attendant delays, the new evidence offered

would likely change the result in the case.”).

       We have considered all of the contentions raised by the parties and conclude that

no further discussion is necessary.

       Accordingly, we will deny the petition for review of the BIA’s decision not to

reopen Petitioners’ immigration proceedings.




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