Andreas Suryanto v. ATTORNEY GENERAL OF THE UNITED STATES Petition for Review of an Order of the Board…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-3924
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ANDREAS SURYANTO,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A095-846-410)
Immigration Judge: Honorable Donald Ferlise
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 4, 2011
Before: RENDELL, JORDAN and VAN ANTWERPEN, Circuit Judges
(Opinion filed January 6, 2011 )
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OPINION OF THE COURT
___________
PER CURIAM
Petitioner Andreas Suryanto petitions for review of the Board of
Immigration Appeals= (ABIA@) September 24, 2009 order denying his second
motion to reopen immigration proceedings. For the following reasons, the
petition for review will be denied.

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I.
Suryanto is a native and citizen of Indonesia who entered the United States
on September 15, 2001, on a B-2 visitor=s visa. On September 15, 2002, he
applied for asylum on the ground that he was persecuted in Indonesia as an
ethnic Chinese Christian. On March 10, 2004, following a merits hearing, an
Immigration Judge (AIJ@) denied Suryanto=s applications for asylum, withholding of
removal, and protection under the Convention Against Torture (ACAT@), but
granted him a 60-day voluntary departure period. Suryanto filed an appeal to the
BIA challenging the IJ=s decision. The BIA dismissed his appeal without opinion.
Suryanto then filed a timely petition for review.
Meanwhile, on May 25, 2007, Suryanto married a United States citizen.
We subsequently ordered that Suryanto=s case be held in abeyance pending the
adjudication of Suryanto=s Petition for Alien Relative (Form I-130). On December
10, 2007, his I-130 relative visa petition was approved. On July 23, 2008,
Suryanto filed a motion to reopen and remand his administrative proceedings to
adjust his status. On October 16, 2008, the BIA denied the motion. On October
30, 2008, Suryanto filed a petition for review of the BIA=s October 16, 2008
decision. See C.A. No. 08-4342. We ordered that this case be consolidated for
disposition with his previously-filed case (C.A. No. 06-1424). On October 22,

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2010, we denied both petitions for review. See Suryanto v. Att=y Gen., 2010 WL
4146155, at *4 (3d Cir. Oct. 22, 2010).
On August 17, 2009, following the two deadly hotel bombings in July 2009,
in Jakarta, Indonesia, Suryanto filed a motion to reopen and remand based upon
alleged changed country conditions in Indonesia. In support of his motion
Suryanto submitted: (1) a web article from CNN.com reporting on the bombings;
(2) the U.S. Department of State 2008 Human Rights Report for Indonesia; (3)
the U.S. Department of State 2008 International Religious Freedom Report; and
(4) an August 11, 2009 article from AsiaNews.it discussing remarks by
Indonesian president Susilo Bambang Yudhoyono that Indonesia may face more
terrorist attacks. A.R. 16-44. On September 24, 2009, the BIA denied the
motion to reopen. The BIA found that the motion was both time and number
barred under 8 C.F.R. ' 1003.2(c)(2). In addition, the BIA found that Suryanto=s
Aconclusory claim of changed country conditions@ did not satisfy the exception to
the timely filing requirement because it did not comply with the evidentiary
requirements of 8 C.F.R. ' 1003.2(c)(1). A.R. 3. The BIA did not otherwise
discuss its conclusion or specifically address any piece of evidence submitted by
the petitioner.
Suryanto=s timely petition for review of the BIA=s September 24, 2009
decision is now before the Court.

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II.
We have jurisdiction under 8 U.S.C. ' 1252, which grants federal courts of
appeals jurisdiction to review final orders of the BIA. We review the BIA=s denial
of a motion to reopen for an abuse of discretion, see Ying Liu v. Att=y Gen., 555
F.3d 145, 148 (3d Cir. 2009), and review its underlying factual findings related to
the motion for substantial evidence. Filja v. Gonzales, 447 F.3d 241, 251 (3d
Cir. 2006). The BIA=s denial of a motion to reopen may be reversed only if the
decision is Aarbitrary, irrational, or contrary to law.@ Rranci v. Att=y Gen., 540
F.3d 165, 171 (3d Cir. 2008) (citations omitted).
Motions to reopen must generally be filed with the BIA no later than 90
days after the date of the final administrative decision in the proceeding sought to
be opened. See 8 C.F.R. ' 1003.2(c)(2); see also Shardar v. Att=y Gen., 503
F.3d 308, 313 (3d Cir. 2007). However, Athe 90-day limitation does not apply if
the movant seeks reopening >based on changed circumstances arising in the
country of nationality or in the country to which deportation has been ordered, if
such evidence is material and was not available and could not have been
discovered or presented at the previous hearing.=@ Zheng v. Att=y Gen., 549 F.3d
260, 265 (3d Cir. 2008) (quoting 8 C.F.R. ' 1003.2(c)(3)(ii)).
III.

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The issue before us is whether the BIA abused its discretion in denying
Suryanto=s motion to reopen based on changed country conditions without
explicitly addressing the evidence offered by the petitioner.1 Suryanto argues
that the BIA abused its discretion by failing to consider the documentation he
submitted in support of his motion to reopen. He relies on Zheng v. Attorney
General, in which we found that the BIA abused its discretion by denying a
petitioner=s motion to reopen without identifying or discussing all of the petitioner=s
relevant evidentiary support. 549 F.3d at 268-69.
Suryanto is correct that the BIA is required to Aactually consider the
evidence and argument that a party presents.@ Id. at 266 (quoting Abdulai v.
Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001)). However, this mandate does not
require that the BIA Aexpressly parse or refute on the record each individual
argument or piece of evidence offered by the petitioner.@ Id. at 268 (quoting
Wang v. BIA, 437 F.3d 270, 275 (2d Cir. 2006)). In particular, the BIA is not
1
The BIA correctly determined that Suryanto=s August 17, 2009 motion to
reopen was numerically barred, because Suryanto had previously filed a motion
to reopen on July 23, 2008. See 8 C.F.R. ' 1003.2(c)(2). In addition, the BIA
correctly concluded that Suryanto=s motion to reopen was untimely. The BIA
issued a final order of removal in this case on July 25, 2005. Suryanto=s second
motion to reopen was filed over four years later on August 17, 2009, clearly
beyond the ninety day limitation set forth in 8 C.F.R. ' 1003.2(c)(2). Further,
because Suryanto=s brief fails to address these findings, it appears that Suryanto
has waived these issues on appeal.

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required to address evidence that is plainly immaterial. What is required is that
the BIA consider all relevant evidence and provide an adequate basis from which
we are able Ato discern its reasons for declining to afford relief to a petitioner.@
Id.; see also Huang v. Att=y Gen., 620 F.3d 372, 391 (3d Cir. 2010) (remanding
where BIA failed to consider evidence that was both material and previously
unavailable); Guo v. Gonzales, 463 F.3d 109, 115 (2d Cir. 2006) (finding an
abuse of discretion where the BIA failed to consider documents that were
Aself-evidently material@); Poradisova v. Gonzales, 420 F.3d 70, 81 (2d Cir. 2005)
(holding that the BIA has a duty to explicitly consider country conditions evidence
that Amaterially bears on his claim@) (emphasis added). The burden is on the
petitioner to prove that the BIA did not review the record or consider material
evidence. See Abdulai, 239 F.3d at 550.
Suryanto has not met that burden here. The BIA denied Suryanto=s
motion to reopen because he failed to Acomply with the evidentiary requirements
of 8 C.F.R. ' 1003.2(c)(1) as to the conclusory claim of changed country
conditions.@ A.R. 3. This regulation holds that a motion to reopen Ashall 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.@ 8 C.F.R. ' 1003.2(c)(1). Although the four documents

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Suryanto submitted were not available at the time of his previous hearing, they
are plainly immaterial to his claim that the July 2009 bombings in Jakarta have
created changed country conditions for the petitioner. The two U.S. State
Department reports Suryanto includes were published in 2008 and therefore
demonstrate nothing about whether conditions in Indonesia changed following the
bombings in 2009. The two internet articles he submitted attest to the fact of the
bombings and the President=s anticipation that Indonesia may face more terrorist
attacks in the future, but do not explain how the bombings are relevant to
Suryanto or to his underlying asylum claim, which is based on his status as an
ethnic Chinese Christian. There is no indication in the materials that the
bombings were targeted at Christians in Indonesia, or that conditions in Indonesia
had deteriorated in such a way that would provide a renewed ground for
Suryanto=s asylum claim. The BIA did not abuse its discretion in concluding that
Suryanto=s evidence did not comply with 8 C.F.R. ' 1003.2(c)(1) because it did
not meet the requisite standard of materiality. Suryanto has failed to
demonstrate otherwise. See Sevoian v. Ashcroft, 290 F.3d 166, 175 (3d Cir.
2002) (stating Athe prima facie case standard for a motion to reopen . . . requires
the applicant to produce objective evidence showing a >reasonable likelihood= that
he can establish [that he is entitled to relief]@).
IV.

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Based on the foregoing, we will deny the petition for review.

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