Sri Endang; Herman Suhendra v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SRI ENDANG; HERMAN SUHENDRA,
Petitioners,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 19-71113
Agency No. A096-048-710
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 14, 2022**
San Francisco, California
Before: McKEOWN and PAEZ, Circuit Judges, and MOLLOY,*** District Judge.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Donald W. Molloy, United States District Judge for
the District of Montana, sitting by designation.
FILED
DEC 7 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 3 --

2
Sri Endang and Herman Suhendra (“Petitioners”), natives and citizens of
Indonesia, petition for review of the Board of Immigration Appeals’ (“BIA”)
denial of their motion to reopen their withholding of removal claim on the basis of
changed country conditions. We have jurisdiction under 8 U.S.C. § 1252. We
review the agency’s denial of a motion to reopen for abuse of discretion. Nababan
v. Garland, 18 F.4th 1090, 1094 (9th Cir. 2021). We deny the petition.
Generally, a noncitizen may only “file one motion to reopen proceedings,”
which “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); see 8 C.F.R. § 1003.2(c)(2). These
requirements do not apply if the respondent can establish “changed country
conditions.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see 8 C.F.R. § 1003.2(c)(3)(ii).
Petitioners filed their motion years after the deadline, and this is their third
motion to reopen. Thus, Petitioners had to “clear four hurdles” to overcome the
time and number bars: they needed to (1) produce evidence that country conditions
had changed; (2) submit evidence that was material; (3) demonstrate that the
evidence was not available at the previous proceeding; and (4) show “that the new
evidence, when considered together with the evidence presented at the original
hearing,” would establish prima facie eligibility for withholding of removal.
Toufighi v. Mukasey, 538 F.3d 988, 996 (9th Cir. 2008). The BIA may deny a
motion to reopen for “failing to meet any of these burdens.” Id.

-- 2 of 3 --

3
Here, Petitioners contend that conditions in Indonesia have materially
changed for Christians and thus, their withholding application warrants reopening.
However, they have not presented any arguments regarding their prima facie
eligibility for withholding of removal, let alone evidence demonstrating an
“individualized risk” of persecution as required. See Wakkary v. Holder, 558 F.3d
1049, 1065–66 (9th Cir. 2009) (holding that a petitioner must show that he “will be
singled out individually” to meet the requirements of withholding of removal). As
substantial evidence supports the BIA’s denial of Petitioners’ motion to reopen, we
need not determine whether Petitioners met their evidentiary burden to
demonstrate changed country conditions.1 See Toufighi, 538 F.3d at 996.
PETITION FOR REVIEW DENIED.
1 Notably, while the BIA did err in concluding that Petitioners failed to meet the
requirements of 8 C.F.R. § 1003.2(c)(1), as Petitioners were not required to file a
new application where they were only seeking to reopen their existing withholding
of removal application, that error was harmless. See Aliyev v. Barr, 971 F.3d 1085,
1087 (9th Cir. 2020).

-- 3 of 3 --