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


5-2-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1359




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008

Recommended Citation
"Along v. Atty Gen USA" (2008). 2008 Decisions. Paper 1277.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1277


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                            NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                   No. 07-1359
                                  _____________

                           ALONG, (NO NAME GIVEN),
                                        Petitioner

                                          v.

                ATTORNEY GENERAL OF THE UNITED STATES,
                                    Respondent


                       Petition for Review of an Order of the
                        United States Department of Justice
                           Board of Immigration Appeals
                              (BIA No. A96-263-462)
                     Immigration Judge: Honorable Miriam Mills


                     Submitted Under Third Circuit LAR 34.1(a)
                                 March 25, 2008

             Before: McKEE, RENDELL and TASHIMA*, Circuit Judges

                                (Filed: May 2, 2008)


                             OPINION OF THE COURT




__________________

   * Honorable A. Wallace Tashima, Senior Judge of the United States Court of
Appeals for the Ninth Circuit, sitting by designation.
RENDELL, Circuit Judge.

      Petitioner Along (“Along”) seeks review of a January 2007 decision by the Board

of Immigration Appeals (“BIA”) denying, as untimely, his motion to reopen the BIA’s

January 2006 decision to dismiss his appeal. For the following reasons, the Petition for

Review will be denied.

                                   BACKGROUND 1

      In May 2001, Along, a native and citizen of Indonesia, entered the United States

on a visitor visa. On March 29, 2003—well after his period of authorized stay had

expired (November 12, 2001)—Along filed an application for asylum, withholding of

removal, and protection under the Convention Against Torture (“CAT”), which was

referred to an Immigration Judge (“IJ”) for adjudication. On May 19, 2003, Along was

issued a Notice to Appear charging him with removability under 8 U.S.C. § 1227(a)(1)(B)

as an alien who overstayed his admission as a non-immigrant.

      In removal proceedings, Along admitted removability, but requested asylum,

withholding of removal, CAT protection, and voluntary departure. In October 2004, the

IJ issued an oral decision finding Along removable as charged. The IJ concluded that

Along’s asylum application was untimely, as he failed to present evidence of

extraordinary circumstances or changed country conditions that would justify his filing




 1
  As we write for the benefit of the parties alone, we need not undergo a lengthy
recitation of the facts.

                                            2
for asylum beyond the statutory one-year time period. Moreover, the IJ found that Along

had not suffered past persecution on account of his religion or ethnicity and did not

demonstrate a well-founded fear of future persecution because his family, then residing in

the Indonesian city of Pontianak, had suffered no harm on account of their ethnicity or

religion since their relocation.

         In November 2005, Along appealed the IJ’s decision, and, in January 2006, the

BIA dismissed the appeal, affirming the IJ’s denial of asylum and withholding of

removal.2 After first agreeing that Along’s asylum application had not been timely filed,

the BIA next determined, within the context of Along’s claim for withholding of removal,

that the “various isolated acts reported by [Along], a number which are remote in time, do

not constitute persecution, or that he failed to establish that he faced either an

individualized risk of persecution, or that there was pattern or practice of persecution

against ethnic Chinese Indonesians and/or Christians.” (A.R. 49.) In response to Along’s

assertion that conditions in Indonesia have worsened since the occupation of Iraq by

United States forces, the BIA noted that Along had submitted “no evidence in support of

this generalized claim,” and thus found “no basis upon which a remand in this regard is

warranted.” (A.R. 49.) Along did not seek review of the BIA’s decision by this Court.

         In August 2006, however—more than 90 days after the BIA dismissed Along’s

appeal—Along filed a motion to reopen with the BIA, purportedly based on changed


 2
     Along did not challenge the IJ’s denial of his CAT claim.

                                               3
country conditions in Indonesia. Along attached to this motion his own affidavit and

three letters from family and friends recounting instances of violence by Muslims against

neighboring Christians in Indonesia. On January 12, 2007, the BIA denied Along’s

motion to reopen as untimely, concluding that he “has not established that he is entitled to

an exception to the filing requirements for reopening based on a claim for asylum or

withholding of removal arising from materially changed circumstances in Indonesia.”

(A.R. 2.) On February 5, 2007, Along filed a timely petition for review with this Court.

                                        DISCUSSION

          Along raises two issues on appeal. First, he contends that the BIA abused its

discretion “in ignoring the fact that the new evidence he is seeking to present constitutes

prima facie eligibility for the relief of asylum, withholding of removal, and relief under

Article III of the [CAT].” (Appellant’s Br. 6.) Second, he claims that the BIA abused its

discretion “in disallowing the opening of the case inasmuch as the requirement of

providing clear and convincing evidence that the application for asylum is filed within

one (1) year violates Petitioner’s substantive due process rights and to the equal

protection of laws.” (Id. at 3.) Neither of these issues presents a meritorious ground for

relief.

I.        Motion to Reopen

          We review the BIA’s denial of a motion to reopen for an abuse of discretion and

will not disturb the Board’s decision unless it is “arbitrary, irrational, or contrary to law.”



                                               4
Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir. 2005) (internal quotation marks omitted).

       As recognized above, the BIA denied Along’s motion to reopen on the basis that it

was untimely. Under the regulations, a motion to reopen typically “must be filed no 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). An exception to the filing

requirement exists, however, if the motion seeks relief “based on changed circumstances

arising in the country [of removal], 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). After acknowledging the affidavit and letters that Along submitted in

support of his motion to reopen, the BIA concluded that Along was not eligible to take

advantage of this exception.

       Nowhere in Along’s brief on appeal does he challenge the BIA’s finding that his

motion to reopen was technically untimely,3 nor does he assert that the evidence he

attached to his motion was “material and was not available and could not have been

discovered or presented at the previous proceeding.” 8 C.F.R.§ 1003.2(c)(3)(ii). Instead,

Along argues that “the BIA acted irrationally in ignoring the fact that the new evidence he

is seeking to present constitutes prima facie eligibility for the relief of asylum,

withholding of removal[,] and relief under Article III of the Convention Against Torture.”


 3
  Because the BIA issued its final administrative decision in this case on January 13,
2006, Along’s motion to reopen was due on or before April 13, 2006. Along did not file
his motion to reopen with the BIA until August 21, 2006.

                                               5
(Appellant’s Br. 6.) But while prima facie eligibility for the requested relief is certainly

necessary for the grant of a motion to reopen, see Guo v. Ashcroft, 386 F.3d 556, 563 (3d

Cir. 2004), it is not sufficient when the motion itself is untimely.4 The regulations are

clear. When a motion to reopen based on evidence of changed country circumstances is

filed outside the 90-day window prescribed by the regulations, the motion is time-barred

unless “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). As Along

puts forth no argument that the evidence he presented to the BIA fits within the 90-day

exception, we need proceed no further with this aspect of his appeal.5

II.    Long’s Asylum Application

       The second issue Along presents for our consideration is his contention that the

one-year asylum application requirement violates his substantive due process rights and

his right to equal protection of the laws. We are without jurisdiction to entertain this

 4
  Even when a motion to reopen is timely filed, the BIA “has discretion to deny [that]
motion . . . even if the party moving has made out a prima facie case for relief.” 8 C.F.R.
§ 1003.2(a).
 5
  Had Along challenged the BIA’s ultimate finding that he did “not establish[] that he is
entitled to an exception to the filing requirements for reopening” (A.R. 2), he would have
been no more successful. As recognized above, the “new” evidence Along attached to his
motion consisted of his own affidavit and three letters from family and friends in
Indonesia. The affidavit recounted instances of violence that Along had already put
before the IJ; the letters from his relatives recounted undated instances of violence by
Muslims against Christians in the family’s home city of Pontianak; and the letter from his
friend recounted instances of violence in Jakarta (though no one from Along’s family
resided in Jakarta). Based on this evidence, we cannot conclude that the BIA’s refusal to
grant Along’s motion to reopen was an abuse of discretion.

                                              6
aspect of his appeal, however, as the one-year asylum application requirement was not a

subject of the BIA’s January 12, 2007 decision—the only decision properly before this

Court. (See Pet. for Review (“Fnu, Along hereby petitions the Court for review of the

Order of the Board of Immigration Appeals (Decision of the Board of Immigration

Appeals) denying his appeal dated and entered on January 12, 2007.”).) Because the time

limit for seeking judicial review of the BIA’s January 2006 order has long passed,6 Along

has waived his opportunity to challenge the one-year asylum application requirement on

appeal.

                                    CONCLUSION

      For the reasons set forth above, the Petition for Review will be denied.




 6
   In general, an applicant for asylum or withholding of removal has 30 days in which to
file a petition for review of an order of removal. 8 U.S.C. § 1252(b)(1). The statutory
time frame for filing a petition for review in an immigration case is “mandatory and
jurisdictional.” Stone v. I.N.S., 514 U.S. 386, 405 (1995) (internal quotation marks
omitted). The filing of a motion to reopen or reconsider with the BIA does not toll the
time in which to seek judicial review of a final order of removal. Id. at 394.

                                            7
