United States v. 2016-08-19 | 10-72739 | CHARLEY ZACHARIA V. LORETTA E. LYNCH | nonprecedential |…

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARLEY ZACHARIA, ) No. 10-72739
)
Petitioner, ) Agency No. A075-683-010
)
v. ) MEMORANDUM*
)
LORETTA E. LYNCH, Attorney )
General, )
)
Respondent. )
)
CHARLEY ZACHARIA, ) No. 11-72207
)
Petitioner, ) Agency No. A075-683-010
)
v. )
)
LORETTA E. LYNCH, Attorney )
General, )
)
Respondent. )
)
On Petition for Review of an Order of the
Board of Immigration Appeals
FILED
AUG 19 2016
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.

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Submitted June 6, 2016**
Pasadena, California
Before: FERNANDEZ, RAWLINSON, and BEA, Circuit Judges.
Charley Zacharia, a native and citizen of Indonesia, petitions for review of
the Board of Immigration Appeals’ (BIA) denial of his motions to reopen. See 8
U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(1). We deny the petitions.
When Zacharia’s applications for asylum,1 withholding,2 and Convention
Against Torture3 relief were denied by the Immigration Judge (IJ) on April 11,
2001, Zacharia timely appealed that decision to the BIA,4 but it affirmed the IJ on
September 25, 2002. Zacharia then petitioned for review by this court (“2002
Petition”), but that petition was denied on December 10, 2003.
Zacharia’s first motion to reopen was not filed until July 6, 2010. In that
motion, Zacharia asserted that his counsel at the hearings before the IJ (first
**The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
18 U.S.C. § 1158. We note that the IJ determined that asylum was barred by
the one-year statute. See 8 U.S.C. § 1158(a)(2)(B). That issue is not before us.
28 U.S.C. § 1231(b)(3).
3United Nations Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, adopted Dec. 10, 1984, S. Treaty Doc. No.
100-20 (1988), 1465 U.N.T.S. 85, implemented at 8 C.F.R. § 1208.18.
4The appeal was filed on May 1, 2001.
2

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counsel) was ineffective, and that his counsel on the 2002 Petition (third counsel)
was also ineffective. He does not assert that his counsel before the BIA (second
counsel) was ineffective. He argues that, even though the first motion was not
filed within ninety days5 after the BIA’s decision, the time to file should have been
equitably tolled.6 The BIA determined that he was not entitled to tolling because
he did not act with due diligence7 in prosecuting his claim that first counsel was
ineffective, and that in any event, he had not presented sufficient evidence to
indicate that any error by first counsel had prejudiced him. For purposes of this
disposition we will assume, without deciding, that Zacharia had acted diligently,
but his petition nevertheless founders on his claim that errors by first counsel
prejudiced him. In fact, at the April 11, 2001, merits hearing, the IJ found that
Zacharia was credible,8 but had not shown that he was entitled to withholding or
CAT relief. The BIA affirmed that decision in 2002, and when faced with the first
motion to reopen, it determined that the motion’s “extremely general references” to
5See 8 U.S.C. § 1229a(c)(7)(C)(i).
6See Valeriano v. Gonzales, 474 F.3d 669, 673 (9th Cir. 2007).
7See Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003).
8See Cordoba v. Holder, 726 F.3d 1106, 1109 (9th Cir. 2013); cf. Kaur v.
Ashcroft, 379 F.3d 876, 885, 890 (9th Cir. 2004); Ladha v. INS, 215 F.3d 889, 897,
900 (9th Cir. 2000), overruled on other grounds by Abebe v. Mukasey, 554 F.3d
1203, 1208 (9th Cir. 2009) (en banc).
3

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first counsel’s failure to submit material evidence or to properly prepare Zacharia
for the hearing did not suffice to justify reopening;9 the motion did not show that
Zacharia was prejudiced10 by first counsel’s alleged ineffectiveness. Without that,
third counsel’s failure to pursue a motion to reopen based on first counsel’s alleged
errors was not prejudicial. Because the record supports its determination regarding
prejudice, the BIA did not abuse its discretion when it declined to reopen on the
basis of ineffective assistance of first or third counsel.11 See Toufighi v. Mukasey,
538 F.3d 988, 992–93 (9th Cir. 2008).
In his first motion to reopen, Zacharia also sought to reopen on the basis of
changed country conditions. See 8 U.S.C. § 1229a(c)(7)(C)(ii). That, of course,
was not subject to the ninety-day limitation period. Id. However, Zacharia did
have to show that the evidence of changed conditions was “material” and that it
“was not available and could not have been discovered or presented at the previous
hearing.” 8 C.F.R. § 1003.2(c)(3)(ii); see also Go v. Holder, 744 F.3d 604, 609
98 C.F.R. § 1003.2(c)(1); Young Sun Shin v. Mukasey, 547 F.3d 1019, 1025
(9th Cir. 2008).
10See Iturribarria, 321 F.3d at 901.
11Zacharia also asserts that third counsel’s failure to file a petition for
rehearing of our decision of December 10, 2003, was ineffective assistance. But
Zacharia does not point to any errors of law or fact in our decision that would have
supported a petition. See Fed. R. App. P. 40(a)(2).
4

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(9th Cir. 2014). The new evidence had to be “‘qualitatively different’”12 from that
of the previous hearing, and had to be sufficient to establish a prima facie case for
relief.13 Based on the record, including the relevant Country Reports14 and the
articles Zacharia submitted, the BIA did not err when it determined that he was not
entitled to reopen based on changed country conditions.
We recognize that for decades Chinese-Christians have been subject to
discrimination and harassment in Indonesia,15 but the evidence does not compel a
determination that their problems had qualitatively changed during the years
following Zacharia’s initial hearing. Moreover, while Zacharia points to two more
specific incidents during that time,16 those do not compel a determination that the
BIA erred in deciding that a prima facie case had not been spelled out. In other
12Najmabadi v. Holder, 597 F.3d 983, 987 (9th Cir. 2010); see also Malty v.
Ashcroft, 381 F.3d 942, 946 (9th Cir. 2004).
13See Young Sun Shin, 547 F.3d at 1025.
14See U.S. Dep’t of State, Bureau of Democracy, H.R. and Lab.,
International Religious Freedom Report 2009: Indonesia (Oct. 26, 2009); U.S.
Dep’t of State, Bureau of Democracy, H.R. and Lab., Indonesia: Country Reports
on Human Rights Practices–2000 (Feb. 23, 2001); U.S. Dep’t of State, Bureau of
Democracy, H.R. and Lab., Country Reports on Human Rights Practices:
Indonesia (Feb. 25, 2000).
15See Sael v. Ashcroft, 386 F.3d 922, 925–27 (9th Cir. 2004); see also
Chandra v. Holder, 751 F.3d 1034, 1036–37 (9th Cir. 2014).
16Those were: unpleasantness at the Indonesian Consulate and a sexual
attack on his sister.
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words, the evidence does not compel a determination that conditions had
qualitatively changed in the country in general, or as applied to himself in
particular. The BIA did not abuse its discretion when it denied the first motion to
reopen to the extent that it was based upon changed country conditions.17
Zacharia’s second motion to reopen did not materially differ from his first
motion to reopen; the BIA did not abuse its discretion when it denied the second
motion also.18
Petition DENIED.
17Zacharia asserts that the BIA decision did not sufficiently show that it had
carefully considered the record or said enough to assure us that it had done so. See
Najmabadi, 597 F.3d at 990; Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir.
2005). Our review of the BIA’s order indicates that it did give sufficient
consideration to his claims. See Najmabadi, 597 F.3d at 990.
18See supra n. 17.
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Zacharia v. Lynch, Case Nos. 10-72739 and 11-72207
Rawlinson, Circuit Judge, concurring:
I concur in the result.
FILED
AUG 19 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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