Kaleb Joram Kodongan v. ERIC H. HOLDER, Jr., Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KALEB JORAM KODONGAN,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 11-73827
Agency No. A096-194-929
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 21, 2015**
Before: CANBY, GOULD, and N.R. SMITH, Circuit Judges.
Kaleb Joram Kodongan, a native and citizen of Indonesia, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to
reopen removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We
review for abuse of discretion the denial of a motion to reopen. Najmabadi v.
Holder, 597 F.3d 983, 986 (9th Cir. 2010). We deny the petition for review.
FILED
JAN 29 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

-- 1 of 2 --

The BIA did not abuse its discretion in denying Kodongan’s untimely
motion to reopen for failure to establish prima facie eligibility for the relief sought.
See id. (explaining the BIA can deny a motion to reopen based on at least three
independent grounds, including “failure to establish a prima facie case for the relief
sought”); Wakkary v. Holder, 558 F.3d 1049, 1065 (9th Cir. 2009) (even under
disfavored group analysis, petitioner must present some evidence of individualized
risk); Silaya v. Mukasey, 524 F.3d 1066, 1073 (9th Cir. 2008) (petitioner failed to
demonstrate it is more likely than not petitioner would be tortured if returned). We
reject Kodongan’s contention that the BIA erred in denying his motion to reopen
on this basis.
Further, in light of the court’s decision in Kodongan v. Mukasey, No. 06-
71251, 2008 WL 4949149 (9th Cir. Nov. 13, 2008), the BIA did not abuse its
discretion in denying the motion to reopen to apply our decisions in Wakkary, 558
F.3d at 1049, and Tampubolon v. Holder, 610 F.3d 1056 (9th Cir. 2010).
This dismissal is without prejudice to petitioner’s seeking prosecutorial
discretion or deferred action from the Department of Homeland Security. See
Reno v. American-Arab Anti-Discrimination Committee (AADC), 525 U.S. 471,
483-85 (1999) (stating that prosecutorial discretion by the agency can be granted at
any stage, including after the conclusion of judicial review).
PETITION FOR REVIEW DENIED.
11-73827 2

-- 2 of 2 --