IMG-125                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                Nos. 10-1303 & 10-3355
                                     ___________

                              HERMANAWAN TANZIL,
                                            Petitioner

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                                         Respondent
                    ____________________________________

                      On Petition for Review of an Order of the
                            Board of Immigration Appeals
                             (Agency No. A096-203-764)
                   Immigration Judge: Honorable Rosalind K. Malloy
                     ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    May 2, 2011
             Before: BARRY, HARDIMAN AND COWEN, Circuit Judges

                              (Opinion filed: May 4, 2011)
                                     ___________

                                       OPINION
                                      ___________

PER CURIAM

      Hermanawan Tanzil, a native and citizen of Indonesia, petitions for review of two

Board of Immigration Appeals (BIA) decisions denying his motions to reopen. We

consolidated the cases and will now deny the petitions for review.
                                             I.

       Given the narrow ambit of our review, we will only briefly recapitulate the

background of this case. Tanzil is an ethnic Chinese Christian from Indonesia, who

traveled to the United States for pleasure and overstayed his visa. After the

commencement of removal proceedings, he filed for asylum, withholding of removal, and

protection under the Convention Against Torture (CAT). Tanzil appeared before

Immigration Judge (IJ) Rosalind K. Malloy, who determined that his failure to file within

the one-year deadline rendered him statutorily ineligible for asylum. See Certified

Administrative Record (A.)1 275. The IJ also held that Tanzil had failed to demonstrate

(based on the facts of his case and his evidentiary submissions) a pattern or practice of

persecution against ethnic Chinese or specific instances of past persecution; accordingly,

she denied withholding and protection under the CAT. A.279–80. The BIA agreed,

denying his appeal of the withholding and CAT claims. A.245–46.

       We held that substantial record evidence supported the agency‘s outcome, and

denied Tanzil‘s petition for review of the denial of withholding of removal. See Tanzil v.

Att‘y Gen., 330 F. App‘x 396, 397 n.1, 399 (3d Cir. 2009). In so doing, we addressed

Tanzil‘s claim that his evidence demonstrated a ―pattern or practice‖ of persecution

against ethnic Chinese in Indonesia, noting that the 2003 and 2004 country reports on

Indonesia, which were part of his evidentiary submission, did not compel such a


       1
        All citations are to the administrative record submitted in C.A. No. 10-3355,
which is the more comprehensive and up-to-date of the two.
                                             2
conclusion—an issue we had addressed in Sioe Tjen Wong v. Att‘y Gen., 539 F.3d 225,

233– 34 (3d Cir. 2008). But we also reviewed the other background materials Tanzil

submitted, finding that they too did not mandate an outcome in his favor. Tanzil, 330 F.

App‘x at 398.

       Since that time, Tanzil has filed two functionally identical motions to reopen and

reconsider with the BIA. In his first, submitted on June 29, 2009, Tanzil presented

―evidence [that] was not available at the time of the briefing that was submitted in 2007‖

to support his contention that ―conditions are worsening, not improving in Indonesia for

people like the Respondents [sic].‖ A.82. The evidence consisted of an Indonesian

government report and a ―rebuttal‖ NGO report on human-rights conditions and

discrimination in Indonesia, along with a transcript of testimony given by Dr. Jeffrey

Winters ―from a substantially similar case of a claim by ethnic Chinese Indonesians for

asylum.‖ A.82. Tanzil argued that ―[t]he additional evidence submitted directly

contradict[ed] the final Board findings and is consistent with Dr. Winters‘ testimony,‖ in

that it demonstrated ―a pattern or practice of persecution‖ rooted in ―a de jure system of

discriminatory laws.‖ A.85–86. Moreover, the new submissions ―clearly show[ed] that

the Government of Indonesia cannot or will not protect its Chinese and Christian citizens

from private Islamic fundamentalists.‖ A.88.

       The BIA disagreed, denying the motion to reopen because the ―evidence [did] not

meaningfully reflect ‗changed country‘ conditions in Indonesia sufficient to warrant the

reopening of proceedings.‖ A.56. In doing so, it described the Indonesian government
                                             3
report as being of ―an uncertain origin.‖ It also advised Tanzil that his reliance on the

Ninth Circuit‘s ―disfavored group‖ analysis was misplaced, given this Circuit‘s rejection

of that standard. A.56.

       Tanzil responded to this adverse ruling by filing a petition for review with this

Court. He then submitted a second motion to reopen or to reconsider with the BIA

―based on the Board‘s incorrect finding that an Exhibit submitted by the Respondent in

support of his Motion was of uncertain origin.‘‖ A.9. He further complained that the

BIA‘s decision was ―completely devoid of any consdieration [sic] of this document,

much less of the fact that it constitutes the official Indonesian government statement on

discrimination.‖ A.9. The BIA granted the motion to reconsider, but affirmed its earlier

ruling that the contents of the government report, ―considered along with the

documentation submitted in support of the motion to reopen filed on June 22, 2009, [did

not] warrant the reopening of proceedings insofar as the documents do not meaningfully

reflect changed conditions in Indonesia.‖ A.3. Tanzil filed a second petition for review

with this Court.

                                             II.

       We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). Recognizing that motions

to reopen, which are governed in the immigration agency context by 8 C.F.R.

§ 1003.2(c),2 are entitled to the deference normally afforded an agency‘s interpretations


       2
         We agree with the Government that Tanzil‘s motions to reopen were filed long
after the time period allowed by the applicable regulations. The BIA rendered its merits
                                              4
of its own regulations, we review the BIA‘s decisions for abuse of discretion. See INS v.

Doherty, 502 U.S. 314, 323 (1992); Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir.

2005). ―Discretionary decisions of the BIA will not be disturbed unless they are found to

be ‗arbitrary, irrational or contrary to law.‘‖ Tipu v. INS, 20 F.3d 580, 582 (3d Cir.

1994) (citations omitted).3



decision on March 25, 2008; Tanzil‘s first motion was filed on June 19, 2009. This is
significantly ―later than 90 days after the date on which the final administrative decision
was rendered in the proceeding sought to be reopened.‖ 8 C.F.R. § 1003.2(c)(2).
Inasmuch as Tanzil limited his arguments to ―changed circumstances‖ arising in
Indonesia, the BIA could and did still entertain the motions. See id. § 1003.2(c)(3)(ii).
       3
         Tanzil misidentifies the standard of review that should apply to his petition. In
his brief, he asserts that ―[t]his court reviews questions of law under the de novo
standard‖—later, he simplifies this to ―[t]he Court‘s review is de novo‖—and charges us
with determining whether ―[the BIA‘s] ‗pattern or practice‘ determination did not apply
appropriate standards for the definition of persecution and was made without full
consideration of all evidence.‖ Pet‘r‘s Br. 9. While technically not incorrect insofar as
review of law is concerned—indeed, if motions to reopen turn entirely on questions of
law, we review the BIA‘s legal conclusions de novo, see Luntungan v. Att‘y Gen., 449
F.3d 551, 555 (3d Cir. 2006)—Tanzil does little to situate his petition in such a category
of case. Other portions of Tanzil‘s proffered standard would be more appropriate if we
were reviewing his final order of removal, the time for which has long since passed. A
motion to reopen is the proverbial second bite at the apple, whose disposition is generally
based on internal regulations, BIA discretion, and a heavy dependence on fact, but
nowhere in his briefs does Tanzil acknowledge (or, indeed, tailor his arguments to) our
generally circumscribed level of review. Moreover, the abuse of discretion standard we
apply in this context is neither novel nor obscure. See, e.g., Zheng v. Att‘y Gen., 549
F.3d 260, 264–65 (3d Cir. 2008); McAllister v. Att‘y Gen., 444 F.3d 178, 185 (3d Cir.
2006).

        We would be inclined to attribute this to an error in drafting if not for Tanzil‘s
insistence on adhering to his proffered de novo approach even after the Government
pointed out his error. See Gov‘t‘s Br. 13; Pet‘r‘s Reply Br. 2. In any case, Tanzil has not
justified the use of any alternative standard of review, and we will proceed under abuse of
discretion analysis.
                                             5
                                             III.

       We cannot find that the BIA abused its discretion in declining to reopen

proceedings on either occasion. First, Tanzil has not shown that the BIA shirked its duty

to analyze the evidence before it. He argues that ―[t]he two Board decisions at issue in

this Petition do not provide substantive analysis of the information contained in the

CERD Report, the NGO Report or the expert testimony,‖ Pet‘r‘s Br. 8, but immediately

thereafter acknowledges that ―[t]he first Board decision of December 29, 2009 . . . recited

the evidentiary submissions.‖ The BIA need not write an exegesis on every document

submitted, see Wong v. Att‘y Gen., 539 F.3d 225, 231 (3d Cir. 2008), and it is Tanzil‘s

burden to show that the BIA actively failed to consider the evidence, see Abdulai v.

Ashcroft, 239 F.3d 542, 550 (3d Cir. 2001). The BIA‘s recitation of the evidence suffices

to show its consideration thereof, especially in tandem with statements like ―[a] review of

the report does not support [Petitioner‘s] contention.‖ A.3; see also Toussaint v. Att‘y

Gen., 455 F.3d 409, 417 (3d Cir. 2006). An active demonstration of ―substantive

analysis‖ is not necessary; nor, for that matter, is coming to a conclusion contrary to the

one favored by the Petitioner sufficient to show lack of consideration.

       Moreover, some of the ostensible BIA decisions to which Tanzil objects do not

appear to be reflected in the record. He asserts, for example, that the BIA placed

―excessive weight on prior decisions that were based in older [State Department]

Reports‖ instead of considering the new evidence submitted. Pet‘r‘s Br. 12. One of the

cases he identifies is Sioe Tjen Wong. But the BIA did not ―rely‖ on the factual
                                              6
background of Sioe Tjen Wong in the decisions that are the subject of this petition;

instead, it cited the case to demonstrate this Circuit‘s rejection of the Ninth Circuit‘s

―disfavored group‖ analysis. Nor do we find any record support for Tanzil‘s claim—

which follows a broadside on the general reliability of State Department reports—that

―[t]he approach of the Board in this decision . . . appears to be returning to the once-

universally rejected primacy of the [State Department] Reports,‖ or his similar contention

that ―the Board‘s finding essentially upholds its reliance on this Court‘s previous

decisions that relied on those outdated and incomplete [State Department] Reports.‖

Pet‘r‘s Br. 19–20. The BIA‘s decisions were appropriately, and narrowly, confined to

whether the new evidence presented demonstrated changed country conditions sufficient

to warrant reopening, and we do not see where the BIA allegedly overspilled those

boundaries.

       Turning to the substantive merits of the evidence, we simply cannot agree with

Tanzil that his submissions demonstrated changed country conditions, especially under

the ―clear probability‖ withholding of removal standard and our own deferential standard

of review. The NGO report, which he describes as a ―scathing‖ commentary on the

Indonesian government‘s own summary of its record on human rights and discrimination,

is far more equivocal and technical than he implies, and would appear to take issue with

the government‘s response to past atrocities, the inefficiencies of Indonesia‘s court

system with regard to discriminatory acts, and the pace of the government‘s

implementation of liberalizing, democratizing, and integrating reforms—a noble critique,
                                              7
to be sure, but not one showing changed country conditions implicating renewed

persecution of ethnic Chinese.4 Dr. Winters‘s testimony criticizes ―piecemeal‖ reform

efforts and predicts future violence, A.204–216, but is similarly inconclusive. In sum, the

BIA did not abuse is discretion when it declined to reopen proceedings based on this

evidence.

                                             IV.

       For the foregoing reasons, we will deny the consolidated petitions for review.




       4
         Nor do Tanzil‘s descriptions of the NGO report always jibe with its actual
contents. In his motion to reopen, for example, Tanzil cited paragraph 166 of the report
for the conclusion that ―most victims of discrimination and these crimes are ethnically
Chinese (a group barely mentioned in the Government report).‖ A.85. But the NGO
report is less clear on this point, as it reports that ―[m]ost victims are Chinese ethnic and
other ethnics/tribes specifically connected with their identity of their religion or belief.‖
A.174 (emphasis added).
                                              8
