PURBA v. BARR (2020)

SUMMARY ORDER

Petitioner Tumbor Goldo Roy Purba, a native and citizen of Indonesia, seeks review of a February 27, 2018, decision of the BIA denying his motion to reopen his removal proceedings. In re Tumbor Goldo Roy Purba, No. A XXX XX3 812 (B.I.A. Feb. 27, 2018). We assume the parties’ familiarity with the underlying facts and procedural history.

We review the denial of a motion to reopen for abuse of discretion and the BIA's country conditions determination for substantial evidence. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir. 2008). An alien seeking to reopen may file one motion to reopen no later than 90 days after the final administrative decision. 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. § 1003.2(c)(2). Purba filed his 2017 motion to reopen more than a decade after the BIA's final administrative decision. However, the 90-day time limitation does not apply where the motion seeks asylum “based on changed country conditions arising in the country of nationality or the country to which removal has been ordered, if such evidence is material and was not available and would not have been discovered or presented at the previous proceedings.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii). “In determining whether evidence accompanying a motion to reopen demonstrates a material change in country conditions that would justify reopening, [the agency] compare[s] the evidence of country conditions submitted with the motion to those that existed at the time of the merits hearing below.” In re S-Y-G-, 24 I. & N. Dec. 247, 253 (BIA 2007). Substantial evidence supports the BIA's conclusion that Purba did not establish a material change in conditions for Christians in Indonesia.

As the BIA found, the country conditions evidence reveals that discrimination against Christians has been a longstanding problem. The evidence presented in the record at the time of Purba's hearing before an immigration judge in 2004 reported the mistreatment of minority religions, the existence of political parties advocating for nationwide adoption of Sharia law, limited freedom of expression regarding religious differences, and instances of religiously motivated extremism and violence. The evidence Purba submitted in 2017, including State Department Country Reports for Indonesia, news articles, and scholarly pieces, described discrimination against minority religions, campaigns and political support for adoption of Sharia law, restrictions on religious speech, and several instances of extremism and violence. Accordingly, the evidence reflected conditions for Christians similar to those at the time of the hearing. Because the country conditions evidence supports the BIA's conclusion that Purba failed to demonstrate a material worsening of conditions for Christians in Indonesia as needed to bypass the 90-day filing deadline for his motion, the BIA did not abuse its discretion in denying his motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C)(i), (ii).

While the BIA has regulatory authority to reopen proceedings sua sponte despite the time bar, 8 C.F.R. § 1003.2(a), we lack jurisdiction to review this “entirely discretionary” determination, see Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir. 2006). To the extent that Purba contends that the BIA misstated the record, we find no misperception of the law that would allow remand. See Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir. 2009) (“[W]here the [BIA] may have declined to exercise its sua sponte authority because it misperceived the legal background and thought, incorrectly, that a reopening would necessarily fail, remand to the [BIA] for reconsideration in view of the correct law is appropriate.”). The BIA did not state that reopening would necessarily fail; instead, it simply found that Purba had not established exceptional circumstances to warrant sua sponte reopening. And it did not misperceive the law in connection with Purba's pending visa petition because Purba may pursue an unlawful presence waiver without first reopening his removal proceedings. See 8 C.F.R. § 212.2(b)(1); USCIS, Provisional Unlawful Presence Waivers, available at https://www.uscis.gov/family/family-uscitizens/provisional-unlawful-presence-waivers (“If you have a final order of removal ․, you can only obtain a provisional unlawful presence waiver if you have applied for, and we have already approved, Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal, at the time you file Form I-601A.”).

For the foregoing reasons, the petition for review is DENIED. All pending motions and applications are DENIED and stays VACATED.