Tju v. Holder, Jr. ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
January 26, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
DENNI PRASETY TJU,
Petitioner,
v. No. 08-9588
(Petition for Review)
ERIC H. HOLDER, JR., United States
Attorney General,
Respondent.
ORDER AND JUDGMENT *
Before KELLY, PORFILIO, and O’BRIEN, Circuit Judges.
Petitioner Denni Prasety Tju seeks review of a Board of Immigration
Appeals (BIA) order that denied his motion to reopen removal proceedings.
Exercising jurisdiction under 8 U.S.C. § 1252, we deny the petition.
Tju is a native and citizen of Indonesia. He entered the United States
legally in 1997, but overstayed his visa and was placed in removal proceedings in
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
November 2001. At a hearing before an Immigration Judge (IJ), he conceded
removability, but requested asylum and restriction on removal, claiming a fear of
persecution in Indonesia based on his Chinese ethnicity and Catholic religion.
The IJ denied relief because Tju’s asylum application was untimely and because
he concluded that, despite Indonesia’s civil unrest, Tju had failed to show that he
would be singled out for persecution. Tju appealed the IJ’s decision to the BIA,
which affirmed in an order dated January 28, 2004. He then filed a petition for
review in this court, but that petition was dismissed in October 2004 based on
lack of prosecution.
In June 2008, Tju submitted a motion to the BIA seeking to reopen his
removal proceedings. Typically, such motions must be filed within ninety days of
the BIA’s final order of removal, which, in this case, would have been in early
2005. 8 U.S.C. § 1229a(c)(7)(C)(i). But that time limitation does not apply if the
motion seeks asylum or restriction on removal based on changed country
conditions, and if the motion is supported by evidence that “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); Wei v. Mukasey, 545 F.3d 1248, 1251
(10th Cir. 2008). The evidence of changed country conditions must be
“materially different” from the evidence adduced at the original hearing.
Wei, 545 F.3d at 1254. “Cumulative evidence that conditions asserted in the
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original application persist[] is not evidence of changed circumstances.”
Zhao v. Gonzales, 440 F.3d 405, 407 (7th Cir. 2005).
Here, the BIA denied Tju’s motion as untimely, concluding that he failed to
satisfy the exception to the ninety-day deadline because his new evidence
demonstrated only a “general escalation of religious tensions and conflicts in
certain parts of the country.” Admin. R. at 2-3. It did not establish “a material
change in circumstances that would warrant a new hearing.” Id. at 2. This
holding was not an abuse of discretion. See Infanzon v. Ashcroft, 386 F.3d at
1359, 1362 (10th Cir. 2004) (setting forth standard of review).
The evidence supporting Tju’s motion is precisely the type of cumulative
evidence that is insufficient to justify the reopening of removal proceedings. He
included State Department travel warnings and news articles from 2005 to the
present, which, we agree, document an escalation of violence perpetrated by
radical Islamist groups in certain parts of the country. But as the BIA noted, the
Indonesian government “has prosecuted some of the individuals involved in
religiously motivated attacks.” Admin. R. at 3. Thus, even if Tju were able to
show that he may be targeted, that showing by itself would not entitle him to
asylum. See Hayrapetyan v. Mukasey, 534 F.3d 1330, 1337 (10th Cir. 2008)
(explaining that persecution requires the infliction of suffering or harm “by the
government itself, or by a non-governmental group that the government is
unwilling or unable to control”) (quotation omitted).
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Tju also submitted affidavits from his mother and brother, both of whom
claim to have been attacked by Muslims in 2006. But even considering this
evidence, we cannot say the BIA abused its discretion. Beyond his family’s fear
that he will fall victim to the same violence they did, there is no evidence that Tju
personally is at risk. More accurately, there is no new material evidence. Tju’s
initial application for discretionary relief was based on the same allegations of
generalized violence and disorder underlying his motion to reopen. As such, his
motion was properly denied.
The petition for review is DENIED.
Entered for the Court
Terrence L. O’Brien
Circuit Judge
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