Umboh v. Gonzales , 195 F. App'x 798 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
October 5, 2006
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
Y O LD IE FER RY U MB O H ,
Petitioner,
v. No. 06-9500
(No. A95-554-885)
ALBERTO R. GONZA LES, (Petition for Review)
Attorney General,
Respondent.
OR D ER AND JUDGM ENT *
Before HA RTZ, HOL LOW A Y, and BALDOCK , Circuit Judges.
Yoldie Ferry Umboh is a native and citizen of Indonesia. He petitions for
review of a decision from the Board of Immigration Appeals (BIA) denying his
motion to reopen. M r. Umboh sought to reopen his immigration proceedings
based on ineffective assistance of counsel and changed circumstances. The BIA
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
concluded that M r. Umboh failed to demonstrate that he was prejudiced by his
representatives’ 1 deficient performance. The BIA also determined that
M r. Umboh had not demonstrated that reopening was warranted based on changed
circumstances. W e have jurisdiction to review the BIA’s decision under 8 U.S.C.
§ 1252(a) and we affirm.
Background
M r. Umboh applied for asylum, withholding of removal, protection under
the Convention Against Torture (CAT) and voluntary departure. After a hearing
on the application, the Immigration Judge (IJ) found that M r. Umboh was
statutorily barred from qualifying for asylum because he did not apply within one
year of entering the United States and did not demonstrate exceptional
circumstances or changed country conditions to exempt him from the filing
deadline.
The IJ noted that even if M r. Umboh was not time-barred from being
considered for asylum, he had not established the requisite level of persecution.
The IJ expressed doubts about M r. Umboh’s claim that he had been beaten in
1994, considering his failure to mention the beating in his asylum application, but
stated that even assuming that the beating occurred, M r. Umboh had only show n
harassment and not persecution. Because M r. Umboh could not meet his burden
1
In this decision, the term “representatives” refers to the persons that were
chosen by M r. Umboh as his representatives. Neither of these representatives
were actually attorneys.
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of establishing his eligibility for asylum, the IJ concluded that M r. Umboh had
likewise fallen short of meeting the higher burden for withholding of removal or
protection under the CAT. Finally, the IJ denied M r. Umboh’s request for
voluntary departure noting that M r. Umboh had been equivocal as to whether he
would actually depart.
The BIA affirmed the IJ’s decision on June 13, 2005. M r. Umboh did not
file a petition for review of that decision. Instead, in August 2005, he filed a
m otion to reopen alleging ineffective assistance of counsel by his two
representatives. In its decision denying the motion, the BIA addressed each of
M r. Umboh’s contentions and explained how M r. Umboh had not demonstrated
that he was prejudiced by any of the representatives’ alleged deficiencies.
Because M r. Umboh had not suffered any prejudice, he was not entitled to have
the proceedings reopened.
The BIA also addressed M r. Umboh’s assertion that reopening was
warranted based on new circumstances. The BIA noted that “[t]o warrant
reopening, the evidence of changed circumstances must be material and must have
been unavailable, undiscoverable, or unpresentable at the previous hearing.”
Admin. R. at 4 (quoting 8 C.F.R. § 1003.2(c)(3)(ii)). The BIA concluded that:
“The circumstances asserted by respondent are not indicative of a material
change . . . . Rather, they indicate that Indonesia’s long and unfortunate history
of interreligious violence and discrimination continues.” Id.-3-
M r. Umboh filed a timely petition for review from the BIA’s denial of his
motion to reopen.
Discussion
In portions of M r. Umboh’s brief, he appears to challenge the BIA’s
June 13, 2005 order affirming the IJ’s decision. See, e.g., Petitioner’s Brief at 21.
W e lack jurisdiction to review the BIA’s June 13, 2005 decision because
M r. Umboh did not file a timely petition for review from that decision as required
by 8 U.S.C. § 1252(b)(1). See Infanzon v. Ashcroft, 386 F.3d 1359, 1361 (10th
Cir. 2004); Nahatchevska v. Ashcroft, 317 F.3d 1226, 1227 (10th Cir. 2003).
M r. Umboh did timely file a petition for review of the BIA’s December 7,
2005 decision denying his motion to reopen. Admin. R. 000002-000004. W e
review that decision for abuse of discretion. 2 See Osei v. INS, 305 F.3d 1205,
1208 (10th Cir. 2002); 8 C.F.R. § 1003.2(a) (providing that “[t]he decision to
grant or deny a motion to reopen or reconsider is within the discretion of the
[BIA]”). “An abuse of discretion may be found in those circumstances where the
[BIA’s] decision provides no rational explanation, inexplicably departs from
2
M r. Umboh asserts that this court should review this decision de novo
because he is asserting a constitutional challenge. In support, he relies on
8 U .S.C. § 1252(a)(D)(2). M r. Umboh’s argument mixes apples and oranges.
Section 1252(a)(D)(2) addresses the scope of this court’s jurisdiction to review
certain discretionary decisions that involve constitutional challenges, but does not
address the standard of review for cases involving those challenges. There has
been no change in the law of this circuit regarding the standard of review for a
motion to reopen involving an ineffective assistance of counsel claim. See Osei v.
INS, 305 F.3d 1205, 1208 (10th Cir. 2002).
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established policies, is devoid of any reasoning, or contains only summary or
conclusory statements.” Osei, 305 F.3d at 1208 (quotation omitted). Here on the
contrary, having review ed the decision, the briefs, the record, and the applicable
law pursuant to the above-mentioned standard, we conclude that the BIA did not
abuse its discretion in denying M r. Umboh’s motion to reopen. Admin. R. at
000004.
The decision of the B IA is AFFIRMED.
Entered for the Court
W illiam J. Holloway, Jr.
Circuit Judge
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