Jenny Wirokesumo v. Alberto R. Gonzales

The Honorable Gregory F. Van Tatenhove, United States District Court for the Eastern*
District of Kentucky, sitting by designation
Jenny Wirokesumo is the lead applicant. Pursuant to 8 U.S.C. § 1158(b)(3), Tak Ren1
Yap relies on his wife’s asylum application.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0740n.06
Filed: October 17, 2007
No. 06-4230
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JENNY WIROKESUMO, et al.,
Petitioners-Appellants,
v.
ALBERTO R. GONZALES,
Respondent-Appellee.
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ON APPEAL FROM THE BOARD
OF IMMIGRATION APPEALS
BEFORE: KEITH, GRIFFIN, Circuit Judges; and VAN TATENHOVE, District Judge*
DAMON J. KEITH, Circuit Judge. Petitioners Jenny Wirokesumo (“Wirokesumo”) and
Tak Ren Yap are husband and wife. They are also natives and citizens of Indonesia. Wirokesumo1
was charged with removability under 8 U.S.C. § 1227(a)(1)(B), for being an alien who remained in
the United States for a longer time than permitted. Wirokesumo subsequently applied for asylum,
withholding of removal, and protection under the Convention Against Torture (“CAT”). She later
withdrew her claim under the CAT. After conducting a hearing, the Immigration Judge (“IJ”) denied
Wirokesumo’s application for asylum and withholding of removal. The Board of Immigration

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The record shows that Wirokesumo’s husband, Tak Ren Yap, also came into the United2
States in 1998; however, the record is unclear as to his status of admission. We should also note
that the couple was not married when they entered the United States. They married in 2001.
Appeals (“BIA”) affirmed. Wirokesumo did not appeal the BIA’s decision to this Court, but six
months later, filed a motion to reopen her case with the BIA on the basis of changed country
conditions in Indonesia. The BIA denied Wirokesumo’s motion as untimely. She now appeals the
BIA’s denial. For the following reasons, we AFFIRM.
I. BACKGROUND
Wirokesumo and her husband are both Chinese Christians and citizens of Indonesia. On
August 28, 1998, Wirokesumo entered the United States as a non-immigrant with authorization to
remain for a temporary period of time. On April 16, 2003, the United States Immigration and2
Naturalization Service issued a Notice to Appear, charging Wirokesumo with removability for
remaining in the United States longer than permitted, in violation of 8 U.S.C. § 1227(a)(1)(B). Upon
receiving the notice, on April 25, 2003, Wirokesumo applied for asylum, withholding of removal,
and protection under the CAT. Wirokesumo subsequently withdrew her claim under the CAT. On
December 3, 2003, after conducting a hearing, the IJ denied Wirokesumo’s application for asylum
and withholding for removal. In particular, the IJ found that Wirokesumo’s asylum application was
untimely since it was not filed within one year of her arrival, and Wirokesumo failed to demonstrate
the existence of exceptional circumstances to excuse the time requirement. Likewise, the IJ
concluded that Wirokesumo and her husband “fail[ed] to meet their burden of proof to show
eligibility for withholding [of removal].” (J.A. at 505).
On December 17, 2003, Wirokesumo filed a timely appeal to the BIA, and on October 27,

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2005, the BIA affirmed. In affirming, the BIA agreed and adopted the portion of the IJ’s decision
finding that Wirokesumo’s asylum application was untimely, and found that an exception to the time
requirement was not warranted. The BIA also agreed and adopted the portion of the IJ’s decision
relating to the denial of the withholding of removal which concluded that Wirokesumo did not meet
the burden of proving “that there [was] a clear probability of persecution in Indonesia on account of
an enumerated ground.” (Resp’t’s Supp. J.A. at 2-3). In addition, the BIA, noting the “‘more likely
than not’” standard necessary for granting a withholding of removal, concluded that “[n]either
[Wirokesumo’s or her husband’s] testimony regarding their individual circumstances nor the general
country information in the record support a conclusion that the required standard has been met in this
case.” Id. at 3 (quoting INS v. Stevic, 467 U.S. 407, 424 (1984)). Wirokesumo did not appeal the
BIA’s decision.
On April 25, 2006, six months later, Wirokesumo filed a motion to reopen with the BIA.
Recognizing that the time to file a motion to reopen had expired, Wirokesumo asked the BIA to
make an exception to the time requirement on the basis of changed country conditions in Indonesia.
Specifically, Wirokesumo claimed that there was persecution, harassment, and intimidation against
Christians and non-Muslims by Muslims and that severe discrimination and anti-Chinese violence
had increased significantly. On August 18, 2006, the BIA denied the motion, finding that the motion
to reopen was untimely and that the evidence submitted by Wirokesumo “[was] incremental to the
evidence previously in the record, and does not support a finding that the conditions in Indonesia
have changed so as to constitute an exception to the time limits for filing a motion to reopen.” (J.A.
at 2) (citing 8 C.F.R. §1003.2(c)(3)(ii)). The BIA further held that “the new evidence presented . .

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. does not tend to establish that the respondents would qualify for withholding of removal if
proceedings were reopened.” Id.
On September 14, 2006, Wirokesumo filed a timely notice of appeal to this Court.
II. ANALYSIS
On appeal, Wirokesumo argues that (1) the BIA abused its discretion in denying her motion
to reopen as untimely, and (2) that the BIA’s denial of her motion to reopen was contrary to the
United States’s public policy. We consider Wirokesumo’s arguments respectively.
A. Motion to Reopen
1. Standard of Review
We review the denial of a motion to reopen or reconsider for an abuse of discretion. See
Denko v. INS, 351 F.3d 717, 723 (6th Cir. 2003) (citing INS v. Doherty, 502 U.S. 314, 324
(1992)). “An abuse of discretion can be shown when the IJ or Board offers no ‘rational
explanation, inexplicably departs from established policies, or rests on an impermissible basis
such as invidious discrimination against a particular race or group.’” Id. (quoting Balani v. INS,
669 F.2d 1157, 1161 (6th Cir. 1982)).
2. Discussion
Wirokesumo argues that the BIA abused its discretion by finding that the evidence she
submitted regarding the change of country conditions in Indonesia did not warrant an exception to
the 90-day filing rule. In particular, Wirokesumo claims that the evidence she provided showed that
the country conditions in Indonesia have “deteriorated considerably [for Chinese Christians] since
[her] last hearing.” (Appellants’s Br. 9). Wirokesumo also argues that the BIA erred in making an

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additional finding that, even if the proceedings were reopened, the new evidence presented by
Wirokesumo would not qualify her for withholding of removal. The Government contends that
Wirokesumo motion was untimely, and that she has “failed to demonstrate changed country
conditions in Indonesia excusing that untimeliness.” (Appellee’s Br. 7). The Government further
contends that because the motion to reopen was denied as untimely, this Court lacks jurisdiction to
review the BIA’s additional finding that Wirokesumo failed to established a prima facie case for
withholding of removal, id. at 7, 20-21; and, even if this Court did have jurisdiction, Wirokesumo’s
withholding of removal claim fails on its merits.
“An alien may file one motion to reopen[.]” 8 U.S.C. § 1229a(c)(7)(A). The motion “shall
state the new facts that will be proven at a hearing to be held if the motion is granted and shall be
supported by affidavits or other evidentiary material.” 8 C.F.R. § 1003.2(c)(1). A motion to reopen
“shall not be granted unless it appears to the Board that evidence sought to be offered is material and
was not available and could not have been discovered or presented at the former hearing. Id.; see
Yousif v. INS, 794 F.2d 236, 241 (6th Cir. 1986) (“[A] motion to reopen should not be granted unless
the petitioner makes a prima facie showing that the statutory requirements for the underlying relief
have been met.”).
In general, “the motion to reopen shall be filed within 90 days of the date of entry of a final
administrative order of removal.” 8 U.S.C. § 1229a(c)(7)(C)(i). This time requirement, however,
is not applicable to a motion to reopen that is filed “[t]o apply or reapply for asylum or withholding
of deportation based on changed circumstances arising in the country of nationality . . . , if such
evidence is material and was not available and could not have been discovered or presented at the

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Along with the violence against Chinese Christians, according to Wirokesumo, “[t]he3
changes in Indonesia’s circumstances included the bombing of many churches, limits to church
construction, and bans and closures during the month of Ramadan.” (Appellants’s Br. 12-13).
previous hearing[.]” 8 C.F.R. § 1003.2(c)(3)(ii).
Here, it is undisputed that Wirokesumo’s motion to reopen was not filed within the 90-day
time limit. The BIA’s final order of removal was issued on October 27, 2005; however,
Wirokesumo did not file her motion to reopen until April 26, 2006. To circumvent the timeline,
Wirokesumo avers—through volumes of country reports, articles, and newsletters—that the country
conditions in Indonesia have changed as it pertains to the treatment of Chinese Christians; and thus,
her motion to reopen was timely. See 8 C.F.R. § 1003.2(c)(3)(ii). Wirokesumo’s argument is
unpersuasive.
To begin, Wirokesumo offers evidence of religious violence against Chinese Christians using
the 2002 country report and other documents dated prior to her hearing before the IJ in 2003.
Wirokesumo’s reliance on such evidence is futile because only evidence “not available and could
not have been discovered or presented at the previous hearing” maybe used in requesting an
exception to the 90-day time requirement. Id. Furthermore, Wirokesumo’s reliance on the country
reports (2003, 2004, and 2005) and other documents issued after her hearing before the IJ does not
show how conditions in Indonesia have changed for the worse or how they have deteriorated
considerably for Christians and non-Muslims. In fact, and as the Government points out, the3
conditions proffered by Wirokesumo are not novel; rather, they were preexisting, and to some extent,
the reports indicate that some conditions have gotten better for Christians in Indonesia. See Dandan
v. Ashcroft, 339 F.3d 567, 576 (7th Cir. 2003) (holding that the BIA did not abuse its discretion by

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denying the petitioner’s motion to reopen because the new evidence offered by the petitioner did “not
comprise a compelling case that the situation . . . is markedly different than at the time of his original
hearing[,]” and that the “[d]ocumentary evidence [offered by the petitioners was] reflected in the
Country Report upon which the BIA made its original decision.”)
Wirokesumo also takes issue with the BIA’s conclusion that the evidence offered to show
changed conditions “is incremental to the evidence previously in the record, and does not support
a finding that the conditions in Indonesia have changed so as to constitute an exception to the time
limits for filing a motion to reopen.” (J.A. at 2). However, “[t]he BIA does not abuse its discretion
when it holds that updated information that merely reinforces the original asylum claim does not
satisfy the exception to the 90-day rule for changed country conditions under 8 C.F.R. §
1003.2(c)(3)(ii).” Lin Ye v. Gonzales, 153 F. App’x 128, 130 (3d Cir. 2005).
In sum, the BIA did not abuse its discretion by denying Wirokesumo’s motion to reopen as
untimely because she failed to show changed country conditions in Indonesia as to warrant an
exception to the 90-day time requirement. Having found no abuse of discretion, we need not address
Wirokesumo’s additional claim—where she argues that the BIA erred in finding that even if the
proceedings were reopened, the new evidence presented by Wirokesumo would not qualify her for
withholding of removal.
B. Policy Argument
Wirokesumo also argues that the BIA’s denial of her motion to reopen is contrary to the
United States’s important public policy concerns. This argument is unavailing. First, this claim is
not properly before this Court since the record shows that Wirokesumo did not raise this issue before

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the BIA. See Gilaj v. Gonzales, 408 F.3d 275, 289 (6th Cir. 2007) (“In an appeal from an order of
removal, we have jurisdiction to review only those claims for which the applicant has exhausted the
administrative remedies available to the alien as a matter of right. . . . Only those claims that have
been properly presented to the BIA and considered on their merits can be reviewed by the court in
an immigration appeal.” (internal citations omitted) (citing 8 U.S.C. § 1252(d)(1))). Second,
Wirokesumo’s entire argument is based on public policy concerns regarding refugees. Because
nothing in the record supports Wirokesumo’s status as a refugee, the public policy concerns in which
she heavily relies are not relevant to her.
III. CONCLUSION
For the aforementioned reasons, we AFFIRM the BIA’s denial of Wirokesumo’s motion to
reopen.

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