    12-1148 (L)
    Kowengian v. Holder
                                                                                  BIA
                                                                              Hom, IJ
                                                                          A098 769 469
                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                 SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Thurgood Marshall United
    States Courthouse, 40 Foley Square, in the City of New York,
    on the 13th day of September, two thousand thirteen.

    PRESENT:
             PETER W. HALL,
             DENNY CHIN,
             CHRISTOPHER F. DRONEY,
                  Circuit Judges.
    _____________________________________
    FERY KOWENGIAN,
             Petitioner

                          v.                               12-1148 (L);
                                                           12-1151 (Con),
                                                           12-1152 (Con)
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                 Jay Ho Lee, New York, New York.

    FOR RESPONDENT:                 Stuart F. Delery, Acting Assistant
                                    Attorney General; Linda S. Wernery,
                                    Assistant Director; Gerald M.
                       Alexander, Trial Attorney, Office of
                       Immigration Litigation, Civil
                       Division, United States Department
                       of Justice, Washington, D.C.

     UPON DUE CONSIDERATION of these petitions for review of
decisions of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED that the petitions for
review are DENIED.

     Petitioner, Fery Kowengian, a native and citizen of
Indonesia, seeks review of the BIA’s November 4, 2009
decision denying his motion to reopen and the BIA’s October
30, 2008 decision denying his motion to reopen and for
reconsideration, and the BIA’s April 30, 2008 decision
affirming the April 2, 2007 decision of Immigration Judge
(“IJ”) Sandy K. Hom denying his application for asylum,
withholding of removal, and relief under the Convention
Against Torture (“CAT”). In re Fery Kowengian, No. A098 769
469 (B.I.A. Nov. 4, 2009); In re Fery Kowengian, No. A098
769 469 (B.I.A. Oct. 30, 2008); In re Fery Kowengian, No.
A098 769 469 (B.I.A. Apr. 30, 2008), aff’g No. A098 769 469
(Immig. Ct. N.Y. City Apr. 2, 2007). We assume the parties’
familiarity with the underlying facts and procedural history
of the case.

I.   Petition for Review Under Docket Number 12-1148

     We have reviewed the BIA’s decisions and the IJ’s
decision as supplemented by the BIA. See Yan Chen v.
Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable
standards of review are well-established. See 8 U.S.C.
§ 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513
(2d Cir. 2009).

     Although Kowengian does not challenge, and we thus do
not consider, the IJ’s denial of CAT relief or the finding
that Kowengian failed to establish past persecution, he
argues that he demonstrated a well-founded fear of future
persecution based on a pattern or practice of persecution of
Christians in Indonesia. To establish such a pattern or
practice of persecution against a particular group, a
petitioner must demonstrate that the harm to that group
constitutes persecution, is perpetrated or tolerated by

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state actors, and is “so systemic or pervasive as to amount
to a pattern or practice of persecution.” In re A-M-, 23 I.
& N. Dec. 737, 741 (BIA 2005); see Mufied v. Mukasey, 508
F.3d 88, 93 (2d Cir. 2007) (accepting the BIA’s standard as
a reasonable one, while noting that “[w]ithout further
elaboration [the standard does not make clear] how systemic,
pervasive, or organized persecution must be before the Board
would recognize it as a pattern or practice”).

     According to the State Department’s 2006 Country Report
and International Religious Freedom Report relied on by
Kowengian, attacks on churches occurred with little to no
resistance from police, and shari’a laws were increasingly
adopted by regional governments. However, those reports
note significant efforts by the Indonesian government to
mitigate the tension between Muslims and Christians and that
the shari’a laws were enforced only against Muslims.
Moreover, a 2005 State Department Issue Paper provides that
“in most parts of Indonesia, people are generally able to
worship as they wish with no interference from the state or
their neighbors of other faiths.”

     Because these reports indicate that the sporadic
interreligious violence did not affect all provinces of
Indonesia, and Kowengian testified that he lived near
predominately Chinese Christian communities, the IJ
reasonably found that he failed to meet his burden of
showing that he could not safely relocate within Indonesia.
That finding undermined Kowengian’s proof of fear of
persecution. See 8 C.F.R. § 1208.13(b)(3)(i). The IJ also
reasonably found that the lack of evidence that Kowengian’s
wife, who lives in Indonesia, is ethnic Chinese, and
practices Christianity, has been harmed or targeted further
undercut Kowengian’s proof of fear of future persecution.
See Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir.
1999) (finding that asylum applicant’s fear of future
persecution was diminished when similarly-situated relatives
continued to live in applicant’s native country without
harm). Given the isolated nature of the interreligious
violence, the IJ reasonably found that the harm Christians
suffered was not so severe and pervasive to constitute a
pattern or practice of persecution. See Santoso v. Holder,
580 F.3d 110, 111-12 (2d Cir. 2009) (upholding agency’s
rejection of pattern or practice claim when background


                             3
materials noted only sporadic religious violence against
Christians in Indonesia).

     Because Kowengian was unable to show the objective
likelihood of persecution needed to make out an asylum
claim, he was necessarily unable to meet the higher standard
required to succeed on a claim for withholding of removal.
See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

II. Petition for Review Under Docket Numbers 12-1151 and
    12-1152

     12-1151. Because Kowengian explicitly declines to
challenge the BIA’s denial of his first motion to reopen and
reconsider, the petition for review docketed under 12-1151
is denied.

     12-1152. The BIA’s denial of Kowengian’s second motion
to reopen as untimely was not an abuse of discretion. See
Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam).
An alien may file one motion to reopen, generally no later
than 90 days after the date on which the final
administrative decision was rendered in the proceedings
sought to be reopened. 8 U.S.C. §§ 1229a(c)(7)(A), (C)(i);
8 C.F.R. § 1003.2(c)(2). There is no dispute that
Kowengian’s May 2009 motion was untimely, as his final
administrative order was issued in April 2008. See 8 U.S.C.
§ 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). The time
limitation does not apply to a motion to reopen, however, if
it is “based on changed circumstances arising in the country
of nationality or in the country to which deportation has
been ordered, if such evidence is material and was not
available and could not have been discovered or presented at
the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii); see
also 8 U.S.C. § 1229a(c)(7)(C)(ii).

     The BIA reasonably concluded that Kowengian failed to
establish changed circumstances for ethnic Chinese
Christians in Indonesia. Contrary to Kowengian’s argument,
his evidence, which included an expert affidavit and various
articles, was cumulative of evidence presented at his merits
hearing, which also addressed sporadic attacks on churches
and the passage of shari’a laws. The BIA also reasonably
found that this evidence did not demonstrate that there had

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been a material change in the treatment of Christians and
ethnic Chinese in Indonesia because: (1) the expert
affidavit asserted that a change was likely to occur but had
not yet occurred; and (2) evidence of increased support of
radical Islam and economic and political instability as the
possible impetus for a future pogrom did not prove that
Christians or ethnic Chinese currently were being harmed in
Indonesia. See 8 C.F.R. § 1003.2(c)(3)(ii); Jian Hui Shao
v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008) (reviewing the
BIA’s factual findings under the substantial evidence
standard).

     Because the evidence Kowengian submitted was
insufficient to establish a change in country conditions, he
failed to meet an exception to the filing deadline. The BIA
did not abuse its discretion in denying his motion as
untimely. See 8 U.S.C. § 1229a(c)(7)(C)(i), (ii); 8 C.F.R.
§ 1003.2(c)(2), (3).

     For the foregoing reasons, the petitions for review are
DENIED.

                           FOR THE COURT:
                           Catherine O’Hagan Wolfe, Clerk




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