                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-23-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2737




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                                               NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT


                     No. 06-2737


               ERIK ESTRADA;
       IVANA CATHERINE LEON SANTOSO,

                                     Petitioners,

                            v.

  ATTORNEY GENERAL OF THE UNITED STATES,

                                      Respondent

                 __________________

       On Petition for Review of an Order of the
            Board of Immigration Appeals
           (Agency No. A96-266-943; 944)
                 __________________

       Submitted under Third Circuit LAR 34.1(a)
                   on July 13, 2007


Before: SLOVITER, ALDISERT and ROTH, Circuit Judges

            (Opinion filed: August 23, 2007)




                     OPINION
ROTH, Circuit Judge:

       Erik Estrada and Ivana Santoso, husband and wife, petition this Court for review of

the April 20, 2006 decision of the Board of Immigration Appeals (BIA or Board), in which

the Board denied Petitioners’ motion to reopen removal proceedings based upon changed

country conditions. Because we find that the BIA did not abuse its discretion in denying

Petitioners’ motion, which proffered new evidence that was essentially cumulative of the

evidence originally presented, we will deny the petition for review.

I. BACKGROUND

       Petitioners are citizens and natives of Indonesia. They entered the United States

legally but overstayed their visas. Estrada timely applied for asylum, withholding of

removal, and relief under the Convention Against Torture. He named his wife as a derivative

applicant. (She was ineligible to apply in her own right, having missed the filing deadline.)

Estrada alleged past persecution and fear of future persecution based on his Chinese ethnicity

and Christian faith. On February 13, 2004, an immigration judge (IJ) in Philadelphia

conducted a full merits hearing. Estrada presented evidence of hostility toward and violence

against Christians and Chinese by Muslims in Indonesia. This evidence included U.S. State

Department reports on human rights and religious freedom in Indonesia from 2002 and 2003,

as well as various other related articles. After the hearing, the IJ issued an oral decision

denying Estrada’s requests for relief from removal. This denial necessarily foreclosed

Santoso’s requests as well, although she was granted voluntary departure. Petitioners

                                              2
appealed the IJ’s decision. On August 3, 2005, the BIA adopted the IJ’s reasoning and

dismissed Petitioners’ appeal.

       Estrada and Santoso did not petition this Court for review of the BIA’s August 3rd

decision. Rather, on March 15, 2006, Petitioners filed a motion to reopen under 8 C.F.R. §

1003.2(c). The new evidence attached to Petitioners’ motion to reopen included affidavits

by Petitioners, the State Department reports that were already part of the administrative

record before the IJ, various articles dated before the merits hearing on February 13, 2004,

a State Department Travel Warning for Indonesia from 2004, State Department reports on

religious freedom in Indonesia from 2004 and 2005, and numerous articles post-dating the

February 13th merits hearing. Petitioners argued that this evidence demonstrated changed

country conditions, specifically the growing concern related to the influence of Muslim

extremists in Indonesia. On April 20, 2006, the BIA denied Petitioners’ motion to reopen

based on its determinations that Petitioners failed to demonstrate (1) sufficient changed

circumstances in Indonesia, or (2) that the new evidence would likely change the outcome

of their case. This timely petition for review followed.

II. DISCUSSION

       The BIA had jurisdiction under 8 C.F.R. § 1003.2(c). This Court has jurisdiction

under 8 U.S.C. § 1252. We review the BIA’s denial of a motion to reopen for abuse of

discretion. Fadiga v. Att’y Gen., 488 F.3d 142, 153 (3d Cir. 2007). The Board’s decision

must be reversed if it is “arbitrary, irrational, or contrary to law.” Sevoian v. Ashcroft, 290



                                              3
F.3d 166, 175 (3d Cir. 2002). Thus, our review is “highly deferential.” Guo v. Ashcroft, 386

F.3d 556, 562 (3d Cir. 2004).       Generally, motions to reopen are granted only under

“compelling circumstances,” id. at 561, as such motions are “disfavored.” INS v. Doherty,

502 U.S. 314, 323 (1992).

       Under 8 U.S.C. § 1229a(c)(7)(C), which generally requires a motion to reopen to be

filed within 90 days of the final administrative order, Petitioners’ March 15, 2006 motion

was untimely as it was filed more than 90 days after the Board’s August 3, 2005 order of

removal. However, under the “changed circumstances” exception of 8 C.F.R. § 1003.2(c)(2),

a motion to reopen may be filed at anytime if it is based on evidence of “changed country

conditions arising in the country of nationality” that “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). Even if the changed circumstances exception is met, the BIA ordinarily will

not consider a discretionary motion to reopen unless the moving party meets the “heavy

burden” of demonstrating that the newly proffered evidence “would likely change the result

of the case.” Matter of Coelho, 20 I.&N. Dec. 464, 473 (BIA 1992) (citing Doherty, 502

U.S. at 323); see also Guo, 386 F.3d at 563 (movant seeking reopening of removal

proceedings must “produce objective evidence showing a reasonable likelihood that he can

establish that he is entitled to relief”) (internal quotations and citation omitted).

       The BIA properly disregarded the documents attached to Petitioners’ motion to reopen

that pre-dated February 13, 2004, the date of the merits hearing before the IJ, as that evidence



                                               4
was previously available and could have been presented at the previous hearing. The Board

did consider the evidence that post-dated the merits hearing, but concluded that it did “not

demonstrate[] eligibility for any of the [changed circumstances] exceptions . . . including the

subsection (c)(3)(ii) exception” for changed country conditions. The Board did not abuse its

discretion in so concluding. The material which postdated the merits hearing was essentially

cumulative of the evidence presented to the IJ and merely reinforced Estrada’s original

claims for relief. Because the newly proffered evidence was neither material nor novel, it

failed to meet the requirements of the “changed circumstances” exception of 8 C.F.R.

§ 1003.2(c)(2). See also 8 U.S.C. § 1229a(c)(7)(C)(ii).

       The BIA also considered whether Estrada had met his “heavy evidentiary burden”

under Coelho, 20 I.&N. Dec. at 473. The BIA concluded that he had not, and the Board did

not abuse its discretion in so concluding. As noted by the BIA, the general information

contained in newly proffered evidence was “not . . . highly probative of the respondent’s

particular claims.” 1

III. CONCLUSION

       For the foregoing reasons, we will DENY the petition for review of the BIA’s April

20, 2006 decision.




   1
     Because the BIA did not abuse its discretion in concluding that Petitioners’ motion to
reopen was foreclosed, we need not reach Petitioners’ second argument on appeal regarding
the Board’s failure to address the alleged pattern and practice of persecution against Chinese
and Christians in Indonesia.

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