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


6-27-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3121




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 07-3121
                                     ___________

                             RICKY NOURY PANGKEY,
                                          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. A 79-708-121)
                         Immigration Judge: Daniel A. Meisner
                            __________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   June 18, 2008

      Before: RENDELL, GREENBERG and VAN ANTWERPEN, Circuit Judges

                                 (Filed: June 27, 2008)
                                     ___________

                             OPINION OF THE COURT
                                  ___________

PER CURIAM

      Ricky Noury Pangkey, a practicing Christian and citizen of Indonesia, petitions for

review of a final order of the Board of Immigration Appeals (“BIA”), denying his motion
to reopen a previous Board decision ordering his removal from the United States.

       Pangkey entered the United States on July 8, 1991, as a non-immigrant visitor

authorized to stay until January 8, 1992. He remained in the country after that date and

was issued a Notice to Appear, dated April 3, 2003. In defense of his removal, Pangkey

filed an application for withholding of removal and for protection under the Convention

Against Torture (“CAT”).

       At the October 25, 2004 merits hearing before an Immigration Judge (“IJ”),

Pangkey stated that he came to the United States in pursuit of “a better life” and feared

returning to Indonesia because of the ongoing conflict between Christians and Muslims in

Indonesia. He acknowledged that his parents, one sibling, and his adult son—also

Christians—had remained in the predominately Christian area of Manado, Sulawesi,

Indonesia, without apparent difficulty.

       Noting that Pangkey claimed no past persecution or torture, and expressed no fear

of persecution by the Indonesian government, the IJ concluded the hearing by denying

Pangkey’s applications for withholding of removal and protection under CAT. The IJ

granted Pangkey voluntary departure, and ordered him removed to Indonesia in the event

he failed to depart voluntarily.

       The Board adopted and affirmed the IJ’s decision on January 24, 2006. Pangkey

did not seek review of the Board’s decision. Instead, Pangkey filed a series of motions to




                                             2
reopen, all of which were denied.1 The Board denied Pangkey’s third motion to reopen

on July 9, 2007, concluding that the evidence submitted failed to demonstrate probative

evidence of changed country conditions in Indonesia. Pangkey now seeks judicial review

of the Board’s July 9, 2007 denial of his motion to reopen.

       We review the BIA’s denial of a motion to reopen for abuse of discretion. INS v.

Doherty, 502 U.S. 314, 323 (1992); Sevoian v. Ashcroft, 290 F.3d 166, 170 (3d Cir.

2002). We will deny a petition for review unless the Board’s decision was arbitrary,

irrational, or contrary to law. Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004).

       Pangkey’s third motion to reopen was untimely by ten months.2 An alien who

seeks to reopen his removal proceedings must file a motion no later than ninety days after

the date of the final administrative decision. See 8 C.F.R. § 1003.2(c)(2). To overcome

this time bar, an applicant must supply evidence of “changed circumstances arising in the

country of nationality” that was “not available and could not have been discovered or

presented at the previous hearing.” See id. § 1003.2(c)(3)(ii).

       Pangkey does not dispute the BIA’s finding that his motion to reopen was


  1
    The Board denied Pangkey’s first motion reopen on June 9, 2006, because he had
failed to demonstrate changed country conditions in Indonesia. See 8 C.F.R. §
1208.4(a)(4)(i)(A). The Board denied his second motion on December 14, 2006. The
Board found the motion both time and numerically barred pursuant to 8 C.F.R. §
1003.2(c)(2), and noted that the evidence submitted once again failed to establish a
material change in conditions in Indonesia. (See Administrative Record (“A.R.”) at 113.)
  2
   The BIA issued its final administrative decision in this case on October 25, 2004.
Therefore, Pangkey’s motion to reopen was due on or before January 24, 2005. Pangkey
did not file his third motion to reopen, the subject of this appeal, until February 16, 2007.

                                              3
untimely, 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

hearing.” 8 C.F.R. § 1003.2(c)(3)(ii). Instead, he submits that the BIA acted irrationally

ignoring that the new evidence he seeks to present “constitutes prima facie eligibility for

the relief of asylum, withholding of removal and relief under Article II Of the Convention

Against Torture.” (Appellant’s Br. at 6.) In particular, Pangkey argues that the 2005

International Religious Freedom Report and other news articles support his motion to

reopen because they document “continued violence” between “Christians and Muslims,”

as demonstrated by an attack on two churches, gunfire directed at a house being used for

prayer meetings at a Protestant congregation, and the shooting of a clergy woman and

injury to churchgoers. (Id.)

       As the Board correctly concluded, the documentation provided by Pangkey does

not demonstrate changed country conditions as required by the regulations governing

motions to reopen. Instead, the report and accompanying articles are cumulative to his

original application, as they discuss ongoing corruption and general violence perpetrated

against Christians in Indonesia—conditions that existed at the time of Pangkey’s original

merits hearing before the IJ. Pangkey has not provided evidence of a new and imminent

threat to him in particular, or to Christians in general in the region where Pangkey’s

family lives. Although prima facie eligibility for the requested relief is necessary for the

grant of a motion to reopen, see Guo v. Ashcroft, 386 F.3d 556, 563 (3d Cir. 2004), it is



                                              4
not sufficient when a motion is untimely.3

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




  3
   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).

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