Massie v. Atty Gen USA , 293 F. App'x 846 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
9-29-2008
Massie v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-2797
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BLD-269
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-2797
___________
ARINO MASSIE,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of a Decision of the
Board of Immigration Appeals
(Agency No. A79-708-135)
Immigration Judge: Honorable Alberto J. Riefkohl
____________________________________
Submitted for Possible Summary Action Pursuant to
Third Circuit LAR 27.4 and I.O.P. 10.6
August 7, 2008
Before: MCKEE, RENDELL and SMITH, Circuit Judges
(Opinion filed September 29, 2008 )
___________
OPINION
___________
PER CURIAM
Petitioner Arino Massie seeks review of a final decision by the Board of
Immigration Appeals (“BIA”) denying a motion to reopen his removal proceedings. For
the reasons that follow, we will deny the petition for review and summarily affirm the
BIA’s decision.
I. Background
Petitioner Arino Massie is a native and citizen of Indonesia. He entered the United
States in July 2001 on a business visitor’s visa, remained illegally after the visa expired,
and was served with a notice to appear in April 2003. He conceded removability and
applied for asylum, withholding of removal, and protection under the Convention Against
Torture (“CAT”), claiming persecution in Indonesia because he is an ethnic Chinese
Christian. In a July 2006 hearing, the Immigration Judge (“IJ”) denied Massie’s
applications.1
Massie then appealed the IJ’s decision to the BIA. In support, Massie submitted
two 2006 reports concerning country conditions in Indonesia that he had not previously
presented to the IJ. Massie argued that the documents showed changed country
conditions and a pattern or practice of violence against Christians in Indonesia. For
example, Massie cited a passage stating that “[t]he Government [of Indonesia] at times
has tolerated the abuse of freedom of religion. . . .” A.R. 023. The BIA treated Massie’s
new evidence as a motion to remand. In a decision dated January 31, 2008, the BIA
affirmed the IJ’s denial of Massie’s applications. It also denied the motion to remand
1
The IJ held that Massie’s asylum application was untimely because he did not file
within one year of his arrival and did not present extraordinary circumstances excusing
the delay. A.R. 089-90, 95. The IJ denied withholding of removal and protection under
the CAT because Massie failed to present sufficient evidence demonstrating he would
more likely than not suffer persecution or torture if returned to Indonesia. A.R. 095-97.
because the evidence did not show changed circumstances or a pattern or practice of
persecution of ethnic Chinese Christians in Indonesia. Massie did not petition this Court
for review of the BIA’s decision.
On March 3, 2008, Massie moved the BIA to reopen his case based on a claim that
Indonesia was experiencing renewed violence against Christians. In support, Massie
proffered a 2006 Department of State International Religious Freedom Report, which
stated that “the government [of Indonesia] tolerated the abuse of religious freedom by
private groups or failed to punish perpetrators.” See A.R. 008. According to Massie’s
motion, the Report was released in December 2006, after Massie submitted his appeal
brief and motion for remand to the BIA. Id.
In a May 23, 2008, decision, the BIA found that Massie’s evidence was “similar to
or of the same character” as the evidence previously presented to the BIA in support of
his motion to remand. The BIA held that this evidence did not warrant reopening and did
not demonstrate a pattern or practice of persecution of ethnic Chinese Christians in
Indonesia. The BIA therefore denied Massie’s motion to reopen.
Massie, through counsel, now petitions this Court for review of the BIA’s May 23,
2008, decision denying his motion to reopen. He has also moved for a stay of removal.
The Government opposes the stay and has moved for summary action.
II. Analysis
Only the BIA’s decision denying Massie’s motion to reopen is properly before the
Court at this time. See Stone v. INS, 514 U.S. 386, 405 (1995). We review the BIA’s
denial of a motion to reopen for abuse of discretion. Guo v. Ashcroft, 386 F.3d 556, 562
(3d Cir. 2004); Lu v. Ashcroft, 259 F.3d 127, 131 (3d Cir. 2001). The BIA’s decision
will be upheld unless it was “arbitrary, irrational, or contrary to law.” Tipu v. INS, 20
F.3d 580, 582 (3d Cir. 1994). We will take summary action to dispose of a case when
“no substantial question is presented.” 3d Cir. LAR 27.4.
The BIA correctly held that reopening was not warranted because Massie’s
evidence was “similar to” the evidence previously presented in support of his motion for
remand and therefore was not sufficiently new to warrant reopening. See INA
§ 240(c)(7)(B) [8 U.S.C. § 1229a(c)(7)(B)] (requiring proof of “new facts” for
reopening). Indeed, the 2006 International Religious Freedom Report that Massie
previously submitted to the BIA in support of his motion for remand includes language
nearly identical to that which Massie contends is the “new evidence” supporting his
motion to reopen.2 Moreover, Massie’s claim that the evidence in support of his motion
to reopen was not previously available to him is dubious. The report in question was
issued in December 2006. Yet Massie filed his appeal brief with the BIA on May 11,
2007, and it included as evidence a 2006 State Department Report issued on March 6,
2007. See A.R. 018, 026. Thus, it appears that the information Massie presents was
2
According to the report previously submitted in support of remand, “[t]he
Government sometimes tolerated discrimination against and the abuse of religious groups
by private actors, and often failed to punish perpetrators.” A.R. 055. This is nearly
identical to the “new developments” Massie cites in his motion to reopen: “the
government tolerated the abuse of religious freedom by private groups or failed to punish
perpetrators.” A.R. 008.
available to him when he last appeared before the BIA. Thus, the BIA did not abuse its
discretion in concluding that this does not warrant reopening. See 8 C.F.R.
§ 1003.2(c)(3)(ii).
III. Conclusion
Because this appeal does not raise a substantial question, we will grant the
Government’s motion for summary action and deny the petition for review. See Third
Circuit LAR 27.4 and I.O.P. 10.6. We will deny Massie’s motion for stay of removal.