Simarmata v. Holder, Jr.

Filing

OPINION issued by Sandra L. Lynch, Chief Appellate Judge; Jeffrey R. Howard, Appellate Judge and Rogeriee Thompson, Appellate Judge. Published. [13-1463]

Case: 13-1463

Document: 00116686990

Page: 1

Date Filed: 05/12/2014

Entry ID: 5822890

United States Court of Appeals
For the First Circuit
No. 13-1463
DAVID EDISON SIMARMATA,
Petitioner,
v.
ERIC H. HOLDER, JR., United States Attorney General,
Respondent.

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

Before
Lynch, Chief Judge,
Howard and Thompson, Circuit Judges.

Thomas V. Massucci on brief for petitioner.
Jeffrey R. Meyer, U.S. Department of Justice, Civil Division,
Office of Immigration Litigation, Stuart F. Delery, Assistant
Attorney General, and Stephen J. Flynn, Assistant Director, on
brief for respondent.

May 12, 2014

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LYNCH, Chief Judge.

Date Filed: 05/12/2014

Entry ID: 5822890

David Edison Simarmata, a Christian

native and citizen of Indonesia, petitions for review of an order
of the Board of Immigration Appeals (BIA) denying his untimely
motion to reopen removal proceedings on the basis of changed
country circumstances.

The BIA did not abuse its discretion in

denying Simarmata's motion, and so we deny his petition for review.
I.
On July 9, 2003, Simarmata received a Notice to Appear,
charging him with removability because he was a noncitizen who
overstayed his tourist visa.
conceded

removability

but

See 8 U.S.C. § 1227(a)(1)(B).

applied

for

asylum,

withholding

He
of

removal, and protection under the Convention Against Torture.
Specifically,

Simarmata

stated

that

he

feared

returning

to

Indonesia because he believed he would be subjected to persecution
as a Christian.
Following a hearing addressing Simarmata's application
for asylum, the Immigration Judge (IJ) denied all relief in an oral
decision issued on January 22, 2010.

Simarmata's application for

asylum was untimely, as it came well over a year after his entry
into the United States. As to the application itself, the IJ found
Simarmata to be credible, but also found it unlikely that he would
be subjected to persecution due to his faith were he to return to
Indonesia.

The IJ also denied Simarmata's request for withholding

of removal because Simarmata did not meet his burden of showing

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that he personally was a victim of past persecution on the basis of
his religion or any of the other statutorily enumerated grounds.
Simarmata appealed to the BIA, which agreed with the IJ and
dismissed the appeal on April 17, 2012. Simarmata did not petition
for judicial review of that decision.
On December 3, 2012, Simarmata filed an untimely motion
to reopen asylum proceedings on the basis of changed country
conditions in Indonesia. The BIA denied that motion on the grounds
that the evidence he submitted failed to demonstrate a change in
country circumstances that would excuse the untimeliness of his
motion. See 8 C.F.R. § 1003.2(c)(3)(ii). This petition for review
followed.
II.
We review the BIA's denial of a motion to reopen for
abuse of discretion.
Cir. 2008).

Beltre-Veloz v. Mukasey, 533 F.3d 7, 9 (1st

We "disfavor motions to reopen removal proceedings

because they run the risk of frustrating 'the compelling public
interests

in

proceedings.'"

finality

and

the

expeditious

processing

of

Chen v. Holder, 675 F.3d 100, 105 (1st Cir. 2012)

(quoting Guerrero-Santana v. Gonzales, 499 F.3d 90, 92 (1st Cir.
2007)).
introduce

An applicant seeking to reopen proceedings "must both
new,

material

evidence

that

was

not

available

or

discoverable at the prior hearing and must also present a prima

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facie case for eligibility of relief sought." Jutus v. Holder, 723
F.3d 105, 110 (1st Cir. 2013).
Simarmata argues that the BIA's decision was cursory and
conclusory,

and

therefore

an

abuse

of

discretion.

More

specifically, he protests the BIA's finding that his evidence was
insufficient to show changed country conditions and its finding
that the evidence presented "d[id] not address a particular or
individualized risk of harm" to him if he were to return to
Indonesia.

We disagree with his assessment, and while the "BIA's

decision was concise, . . . that does not make it cursory."

Lie v.

Holder, 729 F.3d 28, 30 (1st Cir. 2013).
The main piece of evidence on which Simarmata relies
an

affidavit

Northwestern

by

Jeffrey

University's

A.

Winters,

Political

Ph.D.,
Science

a

professor

Department

is
in
who

specializes in comparative and international political economy,
labor, and human rights in Indonesia.

Simarmata argues that the

BIA did not properly evaluate the Winters affidavit.

Not so.

The BIA concluded that the Winters affidavit "d[id] not
address

a

particular

respondent,"

but

or

rather

individualized
"address[ed]

risk

of

harm

deteriorating

to

the

conditions

generally for Christians and other religious minorities."1 The BIA

1

The BIA also concluded that the Winters affidavit, along
with the other evidence Simarmata submitted, largely described
"conditions or circumstances . . . similar to those that existed"
at the time of his IJ hearing in 2010. On appeal, Simarmata argues
that the Winters affidavit was "unavailable" prior to its execution
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reasoned that this evidence of "general conditions of tension and
social violence and religious intolerance . . . does not establish
a change in conditions" necessary to excuse an untimely motion to
reopen under 8 C.F.R. § 1003.2(c)(3)(ii).

In addition to focusing

largely on conditions that persisted before 2010, the Winters
affidavit and the other evidence on which Simarmata relies "fail[s]
to link general reports of ongoing persecution with his own
individualized risk of future persecution." Wu v. Holder, 737 F.3d
829, 834 (1st Cir. 2013).

We cannot conclude that the BIA's

assessment of the Winters affidavit constituted an abuse of its
discretion.
Although it is not necessary to our disposition of this
case, it is notable that we have denied at least one other petition
for

review

in

a

case

where

this

same

expert

submitted

a

substantially similar and generalized affidavit in an attempt to
show persecution of Christians in Indonesia.
30.

The Third Circuit has done the same.

See Lie, 729 F.3d at
See, e.g., Tanzil v.

Att'y Gen. of the United States, 426 F. App'x 104, 108 (3d Cir.
2011).

in August 2012.
However, "[t]he regulation's exception for
untimely motions in the event of previously unavailable evidence
was not meant to extend to cases like this one, where evidence the
BIA found to be previously available is simply newly packaged."
Lie, 729 F.3d at 30 n.1.
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III.
For the reasons stated above, Simarmata's petition for
review is denied.

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