Tju v. Holder, Jr.

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 26, 2010
• Docket: 08-9588
• Status: Unpublished

Opinion

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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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

-2- 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).

-3- 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

-4-