09-4035-ag
Gunawan v. Holder
                                                                                BIA
                                                                        A098 642 607
                                                                        A098 642 608
                                                                        A098 642 609
                     UNITED STATES COURT OF APPEALS
                         FOR THE SECOND CIRCUIT

                           SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING
A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”).
A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.


     At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 23 rd day of September, two thousand ten.

PRESENT:
         DENNIS JACOBS,
              Chief Judge,
         JON O. NEWMAN,
         RICHARD C. WESLEY,
              Circuit Judges.
_______________________________________

HARLINA GUNAWAN, KURNIAWAN FELIX ONG,
KURNIAWAN STEVEN ONG,
         Petitioners,

                    v.                                  09-4035-ag
                                                        NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
         Respondent.
_______________________________________

FOR PETITIONERS:               Charles     Christophe,       New    York, New
                               York.

FOR RESPONDENT:                Tony West, Assistant Attorney General;
                               Luis   E.  Perez,  Senior   Litigation
                               Counsel; Elizabeth D. Kurlan, Trial
                              Attorney,   Office   of   Immigration
                              Litigation, United States Department
                              of Justice, Washington, D.C.

      UPON DUE CONSIDERATION of this petition for review of a

decision of the Board of Immigration Appeals (“BIA”), it is

hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

review is DENIED.

      Harlina      Gunawan,   Kurniawan        Felix    Ong,   and    Kurniawan

Steven Ong, natives and citizens of Indonesia, seek review of

an August 31, 2009, order of the BIA denying their second

motion to reopen. 1 In re Harlina Gunawan, Kurniawan Felix Ong,

Kurniawan Steven Ong, Nos. A098 642 607/608/609 (B.I.A. Aug.

31,   2009).       We   assume   the      parties’     familiarity    with     the

underlying facts and procedural history of this case.

      We review the BIA’s denial of Gunawan’s motion to reopen

for abuse of discretion.            Ali v. Gonzales, 448 F.3d 515, 517

(2d Cir. 2006).         An alien may file only one motion to reopen

and must do so within 90 days of the final administrative

decision.        8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2).

However, there is no time or numerical limitation where the

alien     establishes     materially        “changed     country     conditions

arising     in    the    country     of    nationality.”         8    U.S.C.     §

1229a(c)(7)(C)(ii);        see     also    8   C.F.R.   §   1003.2(c)(3)(ii).


      1
      For ease of reference, this order refers solely to the lead
petitioner, Harlina Gunawan.

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Here,     the   BIA   did      not   abuse   its   discretion    in   denying

Gunawan’s second motion to reopen, as it was indisputably

untimely and number-barred.

      Further, as the BIA found, the evidence Gunawan submitted

failed to demonstrate changed country conditions in Indonesia

or   to   overcome       the   immigration    judge’s   (“IJ”)   underlying

adverse credibility determination.             Because the IJ found that

Gunawan was not credible regarding her fear of persecution for

being     an    ethnic    Chinese     Protestant,    the   BIA   reasonably

discounted the letters from her husband and father in which

they asserted that they had suffered persecution on the same

ethnic and religious grounds.            See Xiao Ji Chen v. U.S. Dep’t

of Justice, 471 F.3d 315, 342 (2d Cir. 2006) (explaining that

the weight afforded to the applicant’s evidence in immigration

proceedings lies largely within the discretion of the agency);

see also Qin Wen Zheng v. Gonzales, 500 F.3d 143, 146-47 (2d

Cir. 2007); Kaur v. BIA, 413 F.3d 232, 234 (2d Cir. 2005) (per

curiam).

      Moreover, contrary to Gunawan’s argument, the record does

not demonstrate that the BIA failed to consider any of the

background evidence she submitted.             See Xiao Ji Chen, 471 F.3d

at 338; see also Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d

Cir. 2006). Indeed, rather than demonstrating a worsening of



                                       -3-
country conditions for ethnic Chinese Christians in Indonesia,

the 2007 State Department Country Report, which Gunawan cites

in her brief, states that instances of discrimination and

harassment against ethnic Chinese Indonesians have declined,

and that recent reforms have led to increased religious and

cultural freedom.         Consequently, we conclude that substantial

evidence supports the BIA’s conclusion that Gunawan failed to

demonstrate changed country conditions.         See Jian Hui Shao v.

Mukasey, 546 F.3d 138, 169 (2d Cir. 2008) (reviewing changed

country conditions findings for substantial evidence); see

also      8      U.S.C.      §    1229a(c)(7)(C)(ii);    8   C.F.R.

§ 1003.2(c)(3)(ii).

       For the foregoing reasons, the petition for review is

DENIED.       As we have completed our review, any stay of removal

that the Court previously granted in this petition is VACATED,

and any pending motion for a stay of removal in this petition

is DISMISSED as moot. Any pending request for oral argument in

this petition is DENIED in accordance with Federal Rule of

Appellate Procedure 34(a)(2), and Second Circuit Local Rule

34.1(b).

                                   FOR THE COURT:
                                   Catherine O’Hagan Wolfe, Clerk




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