                                                                NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                                   ___________

                                      No. 10-2362
                                      ___________

                                  SHIN THING SUDIN,
                                       Petitioner

                                            v.

                     ATTORNEY GENERAL OF THE UNITED STATES
                        ____________________________________

                         On Petition for Review of an Order of the
                              Board of Immigration Appeals
                              (Agency No. A099-941-237)
                           Immigration Judge: Jeffrey L. Romig
                        ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  March 25, 2011
           Before: AMBRO, HARDIMAN and STAPLETON, Circuit Judges

                              (Opinion filed: April 12, 2011)

                                      ___________

                                       OPINION
                                      ___________

PER CURIAM

       Before us is a petition for review of an order of the Board of Immigration Appeals

(“BIA”), denying the Petitioner‟s motion to reopen his removal proceedings. We will

deny the petition.
       Shin Thing Sudin, a 55-year-old ethnic Chinese native of North Sumatra and

citizen of Indonesia, entered the United States on a six-month nonimmigrant visa in 2004.

In 2007, the Department of Homeland Security (“DHS”) placed Sudin in removal

proceedings for overstaying his visa, in violation of INA § 237(a)(1)(B) [8 U.S.C. §

1227(a)(1)(B)]. Sudin conceded removability and applied for asylum, withholding from

removal, and protection under the Convention against Torture (“CAT”). He claimed that

he was persecuted for his Chinese ethnicity and Buddhist religion. Sudin testified at his

removal hearing about the 1966 riots against ethnic Chinese in Sumatra (when he was a

child), and the looting of his family‟s North Sumatran store in the 1998 riots. Sudin said

that once he moved to Jakarta in 1983, he experienced no problems personally. He stated

that he came to the United States because of the riots that had occurred in Indonesia in

the past and because he saw some Indonesians kill a Chinese man and steal his

motorbike. He said that his wife and 18-year-old son remain in Jakarta. Sudin testified

that his son was beaten by unknown people who stole his cell phone and money. He said

that he feared future persecution based on his Chinese ethnicity and Buddhist religion

upon his return to Indonesia. To support his claim, Sudin submitted, among other things,

the State Department‟s 2007 Country Report on Human Rights in Indonesia.

       The Immigration Judge (“IJ”) denied all forms of relief, finding that Sudin failed

to show past persecution or that he held an objectively reasonable fear of future

persecution based on his Chinese ethnicity and Buddhist religion. The BIA affirmed the


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IJ‟s decision and dismissed Sudin‟s appeal in April 2009. Sudin did not file a petition for

review.

       In July 2009, Sudin filed a counseled motion to reopen before the BIA, submitting

a documented report that two luxury hotels were bombed in Jakarta on July 17, 2009,

which, Sudin claimed, was “perpetrated by extremists,” and “underscore[d] the

increasing dangers to the population of the country, particularly targeted groups like the

Chinese minority.” The BIA denied relief in August 2009, holding that the evidence

failed to indicate changed country conditions in Indonesia sufficient to warrant

reopening. Relying on our decision in Sioe Tjen Wong v. Attorney General, 539 F.3d

225 (3d Cir. 2008), the BIA also declined to consider Wakkary v. Holder, 558 F.3d 1049

(9th Cir. 2009), a case cited by Sudin in support of his claim. We dismissed Sudin‟s pro

se appeal, filed in November 2009, as untimely. (C.A. No. 09-4297.) Sudin then

submitted a motion (filed by new counsel) requesting that the BIA reissue its decision

because his former counsel, who died in October 2009 after a long struggle with cancer,

failed to file a timely petition for review on his behalf. The BIA granted the motion and

reissued its decision on April 30, 2010. Proceeding pro se, Sudin filed a timely petition

for review.

       We have jurisdiction over this petition pursuant to INA § 242(a) [8 U.S.C.

§1252(a)]. Where the BIA denies a motion to reopen for failure to establish a prima facie

case, we review the BIA‟s ultimate decision to deny a motion to reopen for abuse of


                                             3
discretion, and we review the underlying findings of fact for substantial evidence.1

Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002). Under the deferential abuse of

discretion standard of review, we will not disturb the agency‟s decision unless it is

arbitrary, irrational, or contrary to law. Santana Gonzalez v. Att‟y Gen., 506 F.3d 274,

276 (3d Cir. 2007).

       When the motion to reopen is based on changed country conditions, the movant

must present evidence that is “material and was not available and could not have been

discovered or presented at the former hearing,” which is based on “changed

circumstances arising in the country of nationality.” 8 C.F.R. § 1003.2(c)(3)(ii). On

petition for review, we consider whether the movant presented evidence of changed

country conditions and whether the movant presented a prima facie case for asylum.

Shardar v. Att‟y Gen., 503 F.3d 308, 312 (3d Cir. 2007).

       Sudin asserts that the BIA “failed to find changed country conditions towards the

particularly targeted groups like the Chinese minority.” The documentation Sudin

submitted consisted of a “Notice to Americans” from the United States Embassy, dated

July 17, 2009, announcing two bombings that had occurred at the Marriott and the Ritz

Carlton Mega Kuningan Hotels in Jakarta. (A.R. 50, 55.) The notice did not mention


       1
        We recently enforced the BIA‟s own regulation that forbids it from reviewing an
Immigration Judge‟s findings of facts de novo. Huang v. Att‟y Gen., 620 F.3d 372 (3d
Cir. 2010); 8 C.F.R. § 1003.1(d)(3)(i). In other words, when reviewing an Immigration
Judge‟s decision, the BIA is precluded from finding facts. However, when considering a
motion to reopen, the BIA has the responsibility of considering the facts in the first
instance. 8 C.F.R. § 1003.2(c)(3)(ii).
                                             4
ethnic Chinese or any Indonesian minority. Rather, it warned American citizens living

and traveling in Indonesia to stay in contact with the Embassy for further updates, and

advised American citizens to apprise close family members or friends of their wellbeing.

(Id. at 55.) The notice, which addresses itself to American citizens living or travelling in

Indonesia, does not identify the perpetrators of the bombings nor does it state that ethnic

Chinese who practiced Buddhism were targeted in particular. Sudin did not offer any

evidence that the Indonesian government was responsible for, or was “unable or

unwilling to control,” the violent acts of its civilians. We have long held that evidence of

generalized violence, alone, does not constitute persecution for asylum purposes. See Lie

v. Ashcroft, 396 F.3d 530, 537 (3d Cir. 2005). Accordingly, the record evidence does not

convince us that the BIA abused its discretion in denying reopening.

       Next, we are not persuaded by Sudin‟s argument that the BIA wrongly declined to

consider Wakkary v. Holder, 558 F.3d 1049 (9th Cir. 2009). At the time that the BIA

rendered its decision, we had already rejected the Ninth Circuit‟s “disfavored group”

approach as discussed in Singh v. INS, 94 F.3d 1353 (9th Cir. 1996), refined in Sael v.

Ashcroft, 386 F.3d 922, 925 (9th Cir. 2004), and explained and extended to withholding

of removal cases in Wakkary. See Lie v. Ashcroft, 396 F.3d at 538 n.4; Sioe Tien Wong

v. Attorney General, 539 F.3d at 235 n.5 (declining to reconsider our decision in Lie).

The BIA did not err in declining to consider Wakkary, and even if we could, we see no

reason to revisit our long held precedent here, as adoption of Ninth Circuit‟s approach

would not change the result in this case. Here, Sudin presented no evidence to support a
                                             5
prima facie showing on reopening that he, in particular, was likely to be targeted for

persecution as a member of a disfavored group of ethnic Chinese Buddhists. See Sael,

386 F.3d at 925 (“an applicant may prove that she is a member of a „disfavored group‟

coupled with a showing that she, in particular, is likely to be targeted as a member of that

group”).

       For the foregoing reasons, we will deny the petition for review.




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