Roby Sanger v. Atty Gen USA

• Court: Court of Appeals for the Third Circuit
• Decided: May 17, 2012
• Docket: 11-3198
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 11-3198 ___________

ROBY SANGER, Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent ____________________________________

On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A097-152-835) Immigration Judge: Eugene Pugliese ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) May 16, 2012

Before: RENDELL, VANASKIE and GARTH, Circuit Judges

(Opinion filed: May 17, 2012) ___________

OPINION ___________

PER CURIAM

Roby Sanger, a citizen of Indonesia, was admitted to the United States in 1995 as

a visitor with authorization to stay for six months. Sanger overstayed the allotted time and, as a result, was charged as removable under INA § 237(a)(1)(B).

Prior to that charge, Sanger had applied for asylum based on a fear of persecution

on account of his Christian religious beliefs. Sanger alleged in his counseled asylum

application that in Indonesia he was once beaten up after church services and that “radical

Muslims are threatening to kill Christians if we do not convert.” A.R. at 392.

At a 2005 merits hearing, Sanger provided conflicting testimony about the reasons

underlying his immigration to the United States and his decision to remain. After hearing

that testimony, the immigration judge (“IJ”) denied Sanger‟s application for relief and

ordered that he be removed to Indonesia. The IJ determined that the request for asylum

was untimely, and that Sanger‟s explanations for the belatedness were “incredible.” A.R.

at 257. The IJ stated that “[t]he additional credibility problems in this case are profound

and widespread.” A.R. at 257.

Sanger retained new counsel, who raised three claims on appeal: (1) ineffective

assistance of counsel; (2) denial of due process; and (3) failure to grant a continuance. In

a December 4, 2006 decision, which addressed only claim (1), the Board of Immigration

Appeals (“BIA”) dismissed Sanger‟s appeal. The BIA determined that trial counsel‟s

alleged mishandling of the merits hearing was not prejudicial. Sanger‟s pro se motion for

reconsideration was denied.

Years later, Sanger filed a motion to reopen removal proceedings based on

changed country conditions. See 8 C.F.R. § 1003.2(c)(3)(ii). He claimed that “[s]ince

2 the [BIA] dismissed [his] appeal, there has been a substantial increase in the persecution

of Christians by Muslim fundamentalists in Indonesia.” A.R. at 17. Sanger appended to

his motion State Department reports from 2009 and 2010, a Human Rights Watch report

from 2011, and a handful of news articles. In addition, Sanger contended that the IJ‟s

adverse credibility determination “was the result of the ineffective assistance of counsel.”

A.R. at 29.

The BIA denied Sanger‟s motion to reopen. It observed that Sanger “submitted

reports prepared by the United States Department of State, an international human rights

group, and news articles.” A.R. at 2. Regarding the evidence, the BIA determined that,

“while [it] indicates some problems for Christians in Indonesia, it is generalized and does

not establish this respondent‟s prima facie eligibility for relief from removal.” A.R. at 2.

And regarding Sanger‟s attempt to re-raise his ineffective assistance claim, the BIA noted

that “[t]his claim was fully considered and rejected in our [previous] decision . . . .” A.R.

at 2. Finally, the BIA declined to reopen sua sponte. This petition for review followed.1

Sanger purports to raise two separate claims for our review: the BIA‟s decision is

so cursory that it constitutes (1) an abuse of discretion, and (2) a violation of Sanger‟s

1 We have jurisdiction under 8 U.S.C. § 1252. Kucana v. Holder, --- U.S. ---, 130 S. Ct. 827, 840 (2010).

3 constitutional due process rights. The Government appropriately characterizes the two

claims as effectively one and the same.2

The petition for review will be denied. While Sanger takes issue with the depth of

treatment given to his motion to reopen, the content of the BIA‟s decision is both

responsive to the motion and sufficient for this Court to conduct meaningful review.

Sanger unpersuasively relies on Zheng v. Attorney General, 549 F.3d 260 (3d Cir. 2008),

to advance a contrary conclusion.

In Zheng, we recognized that the BIA has “a duty to explicitly consider any

country conditions evidence submitted by an applicant that materially bears on his claim,‟

and „[a] similar, if not greater, duty arises in the context of motions to reopen based on

changed country conditions.‟” Id. at 268 (citation omitted). We granted Zheng‟s petition

for review because the BIA “did little more than quote passages from [an] earlier decision

. . . without identifying - let alone discussing - the various statements contained in the

record before it that Zheng submitted in support of his motion to reopen.” Id. Yet we

made clear that the BIA is not required to “expressly parse or refute on the record each

individual argument or piece of evidence offered by the petitioner . . . .” Id. (citation

2 We review for abuse of discretion the BIA‟s denial of a motion to reopen. See Pllumi v. Att‟y Gen., 642 F.3d 155, 158 (3d Cir. 2011). “We give the BIA‟s decision broad deference and generally do not disturb it unless it is „arbitrary, irrational, or contrary to law.‟” Id. (citation omitted). Constitutional claims, however, are reviewed de novo. See Garcia v. Att‟y Gen., 665 F.3d 496, 502 (3d Cir. 2011). 4 omitted). Rather, the BIA is only required to “actually consider the evidence and

argument that a party presents.” Id. at 266. (citation omitted).

Here, the BIA identified the evidence submitted by Sanger in support of his

motion to reopen, summarized that evidence, determined that none of the evidence

referenced Sanger specifically, and concluded that the evidence was insufficient to show

prima facie eligibility for asylum relief.3 The BIA did not run afoul of Zheng.4 See also

Kamara v. Att‟y Gen., 420 F.3d 202, 212 (3d Cir. 2005) (“[A]n agency need only set

forth the basis of its administrative action with such clarity as to be understandable; it

need not provide a detailed statement of its reasoning and conclusions.”) (internal

quotation marks omitted).

Relatedly, we conclude that Sanger‟s due process rights were not compromised

during reopening. We find it telling that Sanger‟s brief devotes only one sentence to

describing how the alleged due process violation adversely altered the course of his

motion to reopen. Thus, we have little trouble concluding that Sanger has not made “an

3 The BIA‟s decision is arguably not as thorough as the one at issue in Liu v. Attorney General, 555 F.3d 145 (3d Cir. 2009), which provided an example of “the type of findings that are sufficient under Zheng.” Id. at 149. But the BIA‟s decision in Liu was, again, only an example of what is “sufficient,” not of what is required. 4 Sanger‟s reliance on Gebreeyesus v. Gonzales, 482 F.3d 952 (7th Cir. 2007), is also misplaced. In that case, the petition for review was granted because, inter alia, “the BIA gave no reasoned explanation for its finding that [the alien] had not provided evidence of changed country conditions.” Id. at 955. Here, by contrast, the BIA‟s consideration of, and reasons for rejecting, Sanger‟s motion are readily apparent from the written decision. 5 initial showing of substantial prejudice,” Leslie v. Attorney General, 611 F.3d 171, 175

(3d Cir. 2010) (citation and internal quotations omitted), which is generally required to

maintain a due process claim.

For the reasons given in this opinion, we will deny Sanger‟s petition for review.