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Marsadu v. Holder

United States Court of Appeals, First Circuit

April 4, 2014

NOVA FLORA MARSADU and ROLY RONDONUWU, Petitioners,
v.
ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL, Respondent

Thomas V. Massucci, on brief for petitioners.

Justin R. Markel, Trial Attorney, Office of Immigration Litigation, Civil Division, Stuart F. Delery, Acting Deputy Assistant Attorney General, Civil Division, Department of Justice, and Carl H. McIntyre, Assistant Director, Office of Immigration Litigation, on brief for respondent.

Before Lynch, Chief Judge, Torruella and Kayatta, Circuit Judges.

OPINION

Page 56

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

TORRUELLA, Circuit Judge.

Petitioners, Nova Flora Marsadu (" Marsadu" ) and Roly Rondonuwu (" Rondonuwu" ) (collectively, " Petitioners" ), petition for review of the Board of Immigration Appeals' (" BIA" ) order denying their motion to reopen removal proceedings. Specifically, Petitioners dispute the BIA's finding that they failed to demonstrate a prima facie case for asylum. We disagree with Petitioners, and find that they have failed to demonstrate error sufficient to warrant reopening of their removal proceedings. After careful consideration, we thus deny their petition for review.

Page 57

I. Background

Petitioners are both native citizens of Indonesia and are of the Christian faith. They have been married since 1997; they have two children together, both of whom were born in the United States. On April 22, 2001, the Department of Homeland Security (" DHS" ) admitted Rondonuwu as a nonimmigrant B-1 visitor with authorization to remain in the United States until July 21, 2001. On May 7, 2002, the DHS admitted Marsadu as a nonimmigrant B-2 visitor with authorization to remain in the United States until November 6, 2002.

On February 21, 2003, Marsadu submitted an application for asylum, 8 U.S.C. § 1158(a), and withholding of removal, 8 U.S.C. § 1231(b)(3)(A), as well as for relief under Article 3 of the United Nations Convention Against Torture (" CAT" ), all based on her fears of being persecuted in Indonesia due to her Christian faith. On April 16, 2003, while Marsadu's application was pending, the DHS placed Rondonuwu in removal proceedings. On September 28, 2004, Rondonuwu filed an application for asylum, mirroring Marsadu's theory on her application for withholding of removal. Thereafter, on August 4, 2006, the DHS also placed Marsadu in removal proceedings. The Immigration Judge (" IJ" ) consolidated Petitioners' cases and after a hearing on the merits on April 26, 2007, denied all of their claims.

Subsequently, Petitioners filed a timely notice of appeal to the BIA. The BIA affirmed the IJ's decision, and denied Petitioners' appeal on March 13, 2009. Petitioners thereafter moved this court to review the BIA's denial of the appeal, and on October 30, 2009, we denied their request.

On July 9, 2012, Petitioners filed an untimely motion with the BIA to reopen removal proceedings, arguing that they are prima facie eligible for asylum due to recent changes in country conditions in Indonesia that put them at risk of persecution. Specifically, Petitioners argued that there had been a recent rise in violence in Indonesia led by radical Islamists against Christian minority groups, and that the Indonesian government had become increasingly tolerant of these attacks. To support their contentions, Petitioners relied heavily on an affidavit from Dr. Jeffrey A. Winters, Ph.D., an expert in Southeast Asian political economy and comparative politics, with an emphasis on Indonesia.

On December 4, 2012, the BIA denied Petitioners' motion to reopen removal proceedings. The BIA concluded that Petitioners' evidence in support of their motion was insufficient to show " a change in conditions or circumstances in Indonesia material to [their] asylum claim." In particular, the BIA noted that: Petitioners' evidence was not individualized to reflect dangers posed specifically to them; Petitioners had failed to demonstrate a pattern or practice of persecution of Christians in Indonesia; and Petitioners did not demonstrate that attacks on Christians in Indonesia were a recent development, as such violence had been occurring at the time of Petitioners' 2007 asylum hearing. Therefore, ...


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