                                                           NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ___________

                                  No. 07-4458
                                  ___________

          ALBERT J.L. AWUY; MARINA DEBORA SONDAKH;
      HERTZLER SAMUEL B. AWUY; JOSHUA TIMOTHY J.A. AWUY,
                                                    Petitioners

                                        v.

              ATTORNEY GENERAL OF THE UNITED STATES,
                                                  Respondent

                   ____________________________________

                    On Petition for Review of an Order of the
                        Board of Immigration Appeals
                  (Agency Nos. A97-152-691, 692, 693 & 694)
                      Immigration Judge: Annie S. Garcy
                  ____________________________________

                 Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 May 19, 2010

     Before: McKEE, Chief Judge, HARDIMAN and COWEN Circuit Judges

                          (Opinion filed: June 1, 2010 )

                                  ___________

                                   OPINION
                                  ___________

PER CURIAM

    Petitioners seek review of an order of the Board of Immigration Appeals (“BIA”)
denying their motion to reopen. For the reasons that follow, we will deny in part and

dismiss in part the petition for review.

       Petitioners Albert J.L. Awuy (hereinafter “Awuy”), his wife Marina Deborah

Sondakh, and their two children, Hertzler Samuel B. Awuy and Joshua Timothy J.A.

Awuy, all natives and citizens of Indonesia, entered the United States on travel visas in

1995. In 2003, they affirmatively sought asylum, withholding of removal, and protection

under the Convention Against Torture (“CAT”), based on lead respondent Awuy’s status

as a Christian pastor. They were placed into removal proceedings and, on September 14,

2004, the IJ determined petitioners’ asylum claim to be time-barred and denied their

remaining claims for relief with the exception of their request for voluntary departure.

The BIA affirmed the IJ’s decision on December 29, 2004. Petitioners did not seek

further review at that time nor did they depart the country.

       On May 4, 2007, petitioners filed a motion to reopen pursuant to 8 C.F.R. § 1003.2

in order to seek adjustment of status and protection under the CAT. Petitioners sought to

submit the following “new” evidence: (i) additional proof of their religious status; (ii)

Awuy’s pending I-360 petition to be classified as a special immigrant religious worker,

filed on April 2, 2007; and (iii) proof of changed country conditions in Indonesia.

Petitioners claimed that this evidence was not available at the time of their hearing. They

further alleged that their rights to due process were violated by the ineffective assistance

of prior counsel, both during the proceedings before the IJ and on appeal to the BIA, and



                                              2
that this ineffectiveness provided a substantive basis for reopening.

       The BIA denied petitioners’ motion on September 4, 2007, concluding that

petitioners’ evidence of “changed circumstances” in Indonesia was not material and did

not establish a prima facie entitlement to relief. With respect to petitioners’ claims of

ineffective assistance of counsel, the BIA held, among other things, that petitioners failed

to demonstrate prejudice or due diligence. Finally, the BIA held that petitioners failed to

demonstrate any exceptional circumstances sufficient to warrant the exercise of its limited

discretion to consider a motion to reopen sua sponte pursuant to 8 C.F.R. § 1003.2(a).

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

review the BIA’s denial of a motion to reopen for abuse of discretion. See Liu v. Attorney

Gen., 555 F.3d 145, 148 (3d Cir. 2009). Under this standard, we will uphold the BIA’s

decision unless it is “arbitrary, irrational, or contrary to law.” Sevoian v. Ashcroft, 290

F.3d 166, 174 (3d Cir. 2002). We will affirm the BIA’s factual findings if they are

supported by “‘reasonable, substantial, and probative evidence on the record considered

as a whole.’” Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir. 2006) (quoting INS v. Elias-

Zacarias, 502 U.S. 478, 480 (1992)). We generally lack jurisdiction to review the BIA’s

decision not to exercise its discretion to sua sponte consider an untimely motion to

reopen. See Cruz v. Attorney Gen., 452 F.3d 240, 250 (3d Cir. 2006).

       Petitioners’ motion to reopen was clearly not filed within the requisite ninety-day

period. See 8 C.F.R. § 1003.2(c)(2) (motion to reopen must be filed within 90 days of



                                              3
entry of final administrative order of removal). However, 8 C.F.R. § 1003.2(c)(3)(ii)

carves out an exception to the time limitation to permit an applicant to apply or reapply

for asylum or withholding of deportation based on evidence of changed country

conditions if such evidence is material and was not previously available. Petitioners

submitted evidence which they maintain satisfied this standard. The BIA disagreed and

held that petitioners’ motion to reopen was time-barred. We cannot conclude that the

BIA abused its discretion in reaching this conclusion.

       In INS v. Abudu, 485 U.S. 94 (1988), the Supreme Court set forth three bases on

which the BIA may deny a motion to reopen:

       First, it may hold that the movant has not established a prima facie case for
       the underlying substantive relief sought. . . . Second, the BIA may hold that
       the movant has not introduced previously unavailable, material evidence,
       or, in an asylum application case, that the movant has not reasonably
       explained his failure to apply for asylum initially. . . . Third, in cases in
       which the ultimate grant of relief is discretionary (asylum, suspension of
       deportation, and adjustment of status, but not withholding of deportation),
       the BIA may leap ahead, as it were, over the two threshold concerns (prima
       facie case and new evidence/reasonable explanation), and simply determine
       that even if they were met, the movant would not be entitled to the
       discretionary grant of relief.

Id. at 104-05. Here, the BIA held that not all of the evidence presented was previously

unavailable; that none of it was material; and that it did not demonstrate that petitioners

themselves were more likely than not to be tortured, were at an individualized risk of

persecution, or that there was a pattern and practice of persecution against Christians in

Indonesia. (J.A. 36.) While a significant portion of the evidence does postdate



                                              4
petitioners’ original removal proceedings, we agree that it does not support a claim that

petitioners themselves will likely be subject to torture with the government’s

acquiescence upon their return to Indonesia. Therefore, this additional evidence is not

material to petitioners’ claim and does not make out a prima facie case for CAT relief.1

To the extent petitioners intended to invoke a withholding of removal claim pursuant to

INA § 241(b)(3)(A), we conclude that substantial evidence supports the BIA’s

determination that the evidence they sought to submit demonstrated neither that they were

likely to be singled out for future persecution nor that there is a pattern or practice of

persecution against Christians in Indonesia.2

       Petitioners seem to argue that because this evidence was “new” it was by definition

“material.” (Petitioners’ Br. 12.) Petitioners also claim that the BIA failed to evaluate



   1
     For relief under the CAT, an applicant must prove that it is more likely than not that
he would be tortured if removed to his country of origin. See 8 C.F.R. § 1208.16(c)(2).
“Torture is an extreme form of cruel and inhuman treatment and does not include lesser
forms of cruel, inhuman or degrading treatment or punishment that do not amount to
torture.” 8 C.F.R. § 1208.18(a)(2). To satisfy the requirements of the CAT, the act in
question must be done by or with the acquiescence of a public official. See 8 C.F.R.
§ 1208.18(a)(1); see also Zubeda v. Ashcroft, 333 F. 3d 463, 472 (3d Cir. 2003).
   2
    To be entitled to withholding of removal to a specific country, an applicant must
prove that it is more likely than not that his “life or freedom would be threatened in that
country because of [his] race, religion, nationality, membership in a particular social
group, or political opinion.” 8 U.S.C. § 1231(b)(3)(a). The applicant can satisfy this
standard either by demonstrating past persecution or a likelihood of future persecution.
See 8 C.F.R. § 1208.16(b). An applicant need not show that he would be singled out for
persecution in the future if he can demonstrate “that in that country there is a pattern or
practice of persecution of a group of persons similarly situated to the applicant” and the
applicant is a member of such a group. See 8 C.F.R. § 1208.16(b)(2).

                                                5
whether the “new” evidence demonstrated a prima facie entitlement to relief.

(Petitioners’ Br. 13-22.) While petitioners may disagree with the outcome of the BIA’s

decision, there is no basis in the record for their assertion that the BIA failed to evaluate

this claim.3 (J.A. 36-37.)

       With respect to their ineffectiveness claims, petitioners argued in their motion to

reopen that their first attorney, Ms. Phipps, who represented them before the IJ, failed to

present sufficient evidence of their religious affiliation. (J.A. 62-63.) The BIA held that

petitioners were not prejudiced by any such failure, as their religious affiliation was not in

question and therefore any such evidence would not have affected the underlying

proceedings. (J.A. 37.) Petitioners also maintained that Ms. Phipps sought voluntary

departure on their behalf against their wishes and failed to advise them of their duty to

depart. (J.A. 65-66.) The BIA held that, in waiting over two years before pursuing this

claim, petitioners failed to exercise due diligence. (J.A. 38.) Additionally, the BIA noted

that any error by counsel was cured by both the IJ’s warning and the BIA’s written notice

in its December 2005 order. (J.A. 37.) At the conclusion of their removal proceedings,

the IJ explained at length the process of voluntary departure and the implications for




   3
     To the extent petitioners argue that the evidence submitted in support of their motion
to reopen demonstrated a prima facie entitlement to asylum, we do not address it here. In
their original removal proceedings, the IJ held that petitioners’ asylum claim was time-
barred and the BIA affirmed. Petitioners failed to seek review of the BIA determination
at that time and, in any event, we lack jurisdiction to review such a decision. See
8 U.S.C. § 1158(a)(3); Tarrawally v. Ashcroft, 338 F.3d 180, 185 (3d Cir. 2003).

                                               6
failing to voluntarily depart. (J.A. 731-35.) Petitioners do not explain why they waited

until 2007 to raise their concerns regarding the IJ’s grant of voluntary departure.

Additionally, we find their reliance on Rranci v. Attorney General, 540 F.3d 165 (3d Cir.

2008), to be unavailing. In Rranci, petitioner was a witness for the United States

government whose life was threatened by the person against whom he testified. See id. at

168. We held that, in recommending voluntary departure, petitioner’s counsel may have

erred in light of the seriousness of the threats petitioner received and the overall

consistency and plausibility of his story. See id. at 175. These facts are not in any way

analogous to petitioners’ situation. Furthermore, as the Attorney General notes, had

petitioners voluntarily departed, they would not be subject to the time bars on re-entry

associated with removal and could have awaited adjudication of their various petitions

and applied for readmission at a later time. See Dada v. Mukasey, __ U.S. __, 128 S. Ct.

2307, 2314 (2008).

       Petitioners also allege that they were prejudiced by the failure of their second

attorney, Mr. Masucci, to file an appeal brief. (J.A. 63-64.) However, they did not

specify in their motion to reopen what he would have argued to the BIA that might have

affected the outcome of their appeal. Notably, the BIA did not dismiss their appeal for

failure to file a brief. (J.A. 452.) Thus, the BIA held that petitioners did not suffer




                                              7
prejudice as a result of Mr. Masucci’s failure to file an appeal brief.4 (J.A. 37.) We agree

with the BIA’s disposition of petitioners’ ineffective assistance of counsel claims.

       Finally, petitioners claim for the first time in their petition for review that the IJ

was biased and predisposed against them. As this claim has not been exhausted, we lack

jurisdiction to review it. See Bonhometre v. Gonzales, 414 F.3d 442, 447 (3d Cir. 2005).

       Based on the foregoing, we will deny in part and dismiss in part the petition for

review.




   4
     The BIA also addressed whether Mr. Masucci was ineffective for failing to file an I-
360 petition for a special immigrant religious worker. Before filing their motion to
reopen, petitioners initiated the process of obtaining such a classification. (A.R. 134-37.)
In denying their motion to reopen, the BIA held that petitioners failed to demonstrate a
reasonable probability that relief would have been granted had he done so, as the petition
would have been filed while the appeal was pending and petitioners would not necessarily
have been able to demonstrate that a visa was available at that time. (A.R. 38.) Because
petitioners failed to voluntarily depart within the required time frame, the BIA explained
that they are no longer eligible for an adjustment of status. See 8 U.S.C.
§ 1229c(d)(1)(B). As the Attorney General notes, petitioners have not addressed this
claim in their appeal brief. Accordingly, we deem it waived. See Lie v. Ashcroft, 396
F.3d 530, 532 n.1 (3d Cir. 2005).

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