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


2-15-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4133




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                                                 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                        No. 06-4133




                   SUPRILYANTO, FNU,
                              Petitioner

                              v.

     ATTORNEY GENERAL OF THE UNITED STATES;
 SECRETARY OF DEPARTMENT OF HOMELAND SECURITY,
                           Respondents




             On Petition for Review of an Order
            of the Board of Immigration Appeals
                     (No. A96-253-205)
         Immigration Judge: Hon. Charles M. Honeyman




          Submitted Under Third Circuit LAR 34.1(a)
                     February 11, 2008

  Before: SLOVITER, SMITH, and STAPLETON, Circuit Judges

                  (Filed February 15, 2008)

                           ______

                         OPINION
SLOVITER, Circuit Judge.

       Fnu Suprilyanto petitions for review of an order of the Board of Immigration

Appeals (“BIA”) denying his motion to reopen his immigration proceedings. We will

deny the petition for review.

                                             I.

       Suprilyanto is a native and citizen of Indonesia and an ethnic Chinese Christian.

He entered the United States on or about November 26, 1996 pursuant to a temporary

non-immigrant visa, but overstayed his authorization to remain temporarily in the United

States. Over six years later, he applied for asylum, withholding of removal, and

protection under the Convention Against Torture (“CAT”).

       At the evidentiary hearing before the Immigration Judge (“IJ”), Suprilyanto

testified about several incidents of verbal insults and one incident where he was punched

and slapped around, which he claimed was because he was a Chinese Christian. He also

recalled one occasion where rocks were thrown at the house in which he was living with

his brother by people who yelled “Chinese, Chinese.” A.R. at 102. He and his brother

moved about thirty minutes away, where they did not have further problems other than in

processing documents such as a national ID card.

       The IJ found that Suprilyanto’s request for asylum was untimely and that he had

not demonstrated changed or extraordinary circumstances that excused the delay. See 8

C.F.R. § 1208.4(a). The IJ also found that Suprilyanto failed to establish past persecution



                                             2
or a well-founded fear of future persecution were he to return to Indonesia. Further, the

IJ concluded that Suprilyanto did not qualify for CAT protection. However, the IJ

granted Suprilyanto’s request for voluntary departure. The BIA adopted and affirmed the

IJ’s decision.

       The BIA subsequently denied Suprilyanto’s motion to reopen his proceedings

because, construing it partly as a motion to reconsider, it was untimely under 8 C.F.R. §

1003.2(b)(2), and because none of the evidence showed changed country conditions that

would affect his eligibility for asylum. Suprilyanto appeals this denial. We review the

BIA’s denial of a motion to reopen for abuse of discretion. Sevoian v. Ashcroft, 290 F.3d

166, 170 (3d Cir. 2002).

                                            II.

       We lack jurisdiction to review the finding that Suprilyanto’s asylum petition was

time-barred because it does not present a constitutional claim or a question of law. See

Sukwanputra v. Gonzales, 434 F.3d 627, 633-34 (3d Cir. 2006) (citing 8 U.S.C. §§

1158(a)(3), 1252(a)(2)(D)). The fact that Suprilyanto filed a motion to reopen does not

change the result. See Mehilli v. Gonzales, 433 F.3d 86, 92 (1st Cir. 2005).

       Suprilyanto argues that the BIA’s denial of his motion to reopen was “contrary to

law,” because the BIA failed to consider Sukwanputra, 434 F.3d at 637, a case which this

court remanded because the IJ had failed to address whether a pattern or practice of

persecution existed in Indonesia. This argument is without merit because in this case the



                                             3
IJ specifically found there was no evidence of a pattern or practice of persecution against

Chinese Christians in Indonesia. Suprilyanto also argues that the BIA improperly failed

to “grant weight” to the evidence he submitted with his motion to reopen. Pet. Br. at 12.

At most, this argument challenges the BIA’s factual findings, a challenge over which we

have no jurisdiction as we are limited to questions of law.

         We agree with the government’s contention that Suprilyanto failed to preserve his

withholding of removal claim but, in any event, conclude that there was substantial

evidence to support the BIA’s determination that Suprilyanto failed to show he was

entitled to withholding of removal. See Zubeda v. Ashcroft, 333 F.3d 463, 471 (3d Cir.

2003).

                                             III.

         For the above-stated reasons, we will deny the Petition for Review.

_______________________




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