Kandio v. Ashcroft, (1st Cir. 2005)

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Not for Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 04-2258

JULIA AGUSTIEN KANDIO,

Petitioner,

v.

ALBERTO R. GONZÁLES, ATTORNEY GENERAL,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF

THE BOARD OF IMMIGRATION APPEALS

Before

Boudin, Chief Judge,

Lipez and Howard, Circuit Judges.

Yan Wang and Law Office of Matthew Jeon, P.C. on brief for

petitioner.

Maria M. Mlynar, Department of Justice, Civil Division, Office

of Immigration Litigation, Peter D. Keisler, Assistant Attorney

General, Civil Division, and Linda S. Wernery, Senior Litigation

Counsel, Office of Immigration Litigation, on brief for respondent.

June, 3, 2005

Per Curiam. Julia Agustien Kandio is a native and

citizen of Indonesia who entered the United States on September 22,

1991. She stayed beyond the expiration of her temporary visa on

March 21, 1992, and on July 9, 2001, filed an application for

asylum and withholding of removal, which was denied. The

Immigration and Naturalization Service issued a Notice to Appear on

November 15, 2001, charging her with removability under 8 U.S.C. §

1227(a)(1)(B) (2000) as a nonimmigrant alien who remained in the

United States longer than permitted. Kandio conceded removability

but sought relief on the ground that she feared religious

persecution for being Christian.

At her removal hearing on January 8, 2002, Kandio

testified that members of her principally Muslim community in

Indonesia threatened Christians and once ransacked her home, that

her husband's family harassed her and her husband (who had

converted to Christianity) because of their faith, and that she

came to the United States with her son when the family threatened

to kill him if he became a confirmed Christian. Her husband

remained in Indonesia. Kandio testified that she learned from her

own family about escalating "problems" between Muslims and

Christians starting in 1998, and that they told her that they were

afraid to go to church and that it was not safe for her to return

to Indonesia.

At the conclusion of the hearing, the immigration judge

determined that Kandio was ineligible for asylum because her

application was not timely. The judge also denied her application

for withholding of removal. Although he found Kandio to be

credible, he found that she failed to establish a clear probability

of persecution if she returned to Indonesia.

Kandio filed a notice of appeal to the Board of

Immigration Appeals ("Board") on January 10, 2002, indicating that

she would file a brief for the appeal. After her attorney was

granted one extension for filing a brief, a second extension

request was denied on August 5, 2002, and on August 7, 2003, the

Board summarily dismissed Kandio's appeal under 8 C.F.R. §

1003.1(d)(2)(i)(E), for failing to file a brief without adequate

explanation.

Kandio timely filed a motion before the Board to reopen

the proceedings. Supporting the motion was an affidavit from

Kandio's cousin stating that the husband's family had (when Kandio

was in Indonesia) threatened to kill Kandio and her son; letters

from Kandio's parents and a friend describing attacks and threats

against Christians, and saying that "people" were searching for

Kandio; as well as a number of articles describing Indonesian

religious strife. On April 8, 2004, the Board denied the motion to

reopen, despite finding that the new evidence was material and not

previously available. The Board concluded that the motion did not

cure her untimely asylum application, and that the evidence (old

and new) did not establish that she was more likely than not to be

persecuted or tortured because she failed to establish that the

threat "exists on a country-wide basis."

Kandia filed a second motion to reopen with the Board on

July 8, 2004, that included certificates of her parents' death and

her sister's hospitalization, a letter saying that the sister had

suffered mental distress because of conditions in Indonesia, and

other background materials. The Board denied her motion on August

17, holding that Kandio's second motion both exceeded the maximum

number of motions to reopen--which is one, see 8 C.F.R. §

1003.2(c)(2)--and was also untimely, being filed more than 90 days,

see id., after the Board's final order on August 7, 2003.

The Board also held that the exception of 8 C.F.R. §

1003.2(c)(3)(ii)--permitting an additional motion to reopen based

on newly available material evidence of changed circumstances in

the country--was inapplicable because the information about her

family only amounted to changed personal circumstances. It also

concluded that the background evidence of "some attacks on

Christian churches, and some fighting between Muslims and

Christians" did not remedy her untimely asylum application and did

not show a "clear probability of persecution" or torture in

Indonesia.

Kandio filed a petition for review in this court on

September 16, 2004, which was timely as to her second motion to

reopen. However, she did not file a petition for review within

thirty days either of the Board's initial affirmance of the

immigration judge's decision, or of its denial of her first motion

to reopen. "All final [Board] orders must be appealed to this

court within 30 days." Ven v. Ashcroft, 386 F.3d 357, 359 (1st

Cir. 2004); see 8 U.S.C. § 1252(b)(1). "A motion to reopen or

reconsider does not toll the period for filing a petition for

judicial review of the underlying order"; rather, "the time to

appeal denial orders continues to run despite the filing of motions

to reopen or reconsider." Ven, 386 F.3d at 359-60; see also Zhang

v. INS, 348 F.3d 289, 292 (1st Cir. 2003). As a result, we lack

jurisdiction to review either the Board's initial affirmance or its

denial of Kandio's first motion to reopen proceedings. See De

Araujo v. Ashcroft, 399 F.3d 84, 88 (1st Cir. 2005); Zhang, 348

F.3d at 292.

We review the denial of a motion to reopen for abuse of

discretion. Jupiter v. Ashcroft, 396 F.3d 487, 490 (1st Cir. 2005)

("regardless of the substantive claim involved"); Maindrond v.

Ashcroft, 385 F.3d 98, 100 (1st Cir. 2004). To survive the bar on

multiple or late motions to reopen, the petitioner's motion must be

"based on changed circumstances arising in the country . . . if

such evidence is material and was not available and could not have

been discovered or presented at the previous hearing." 8 C.F.R. §

1003.2(c)(3)(ii). We agree with the Board that the death of

Kandio's parents was a matter of personal circumstances and did not

establish changed circumstances in Indonesia relevant to Kandio's

relief.

The remaining material is the documentation purporting to

establish that Kandio's sister suffered a stroke caused by the

situation in Indonesia; several articles describing attacks on five

Christian churches (including the destruction of church property

and the beating of a pastor and a church member) in June 2004;

descriptions of regulatory restrictions on churches along with some

church closings and threats in March and April of 2004; an article

describing sectarian fighting in a city in the Malaku islands that

killed 37 people in spring 2004; and several articles dated in 2002

describing violence during the period from 1999 to 2002, including

anti-Christian violence in 2000 and 2001 in the Malaku Islands

during which 15,000 Christians were reportedly killed.

The Board did not abuse its discretion in finding that

Kandio's evidence was inadequate to provide her relief: one part of

the background material described only scattered incidents of

violence against several churches and their members (as well as

providing somewhat vague accounts of tightening regulatory

restrictions) that reflected, at most, a continuation of the kinds

of circumstances that the Board had previously considered; the

other part described more serious violence, but this violence was

several years in the past and evidence of those conditions (if even

still relevant) could have been provided earlier. Kandio's

sister's illness is primarily a personal circumstance. This

evidence is insufficient to establish the requisite changed

conditions.

The rest of Kandio's claims on this appeal are attacks

upon the affirmance of the immigration judge's removal decision and

the Board's denial of her first motion to reopen (and include a

meritless attack on alleged procedural irregularities in her

proceeding), and are therefore beyond our jurisdictional purview

now.

The petition for review is denied.

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