SRI ENDANG, ET AL V. MERRICK GARLAND, No. 19-71113 (9th Cir. 2022)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED DEC 7 2022 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT SRI ENDANG; HERMAN SUHENDRA, Petitioners, No. U.S. COURT OF APPEALS 19-71113 Agency No. A096-048-710 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted November 14, 2022** San Francisco, California Before: McKEOWN and PAEZ, Circuit Judges, and MOLLOY,*** District Judge. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Donald W. Molloy, United States District Judge for the District of Montana, sitting by designation. Sri Endang and Herman Suhendra (“Petitioners”), natives and citizens of Indonesia, petition for review of the Board of Immigration Appeals’ (“BIA”) denial of their motion to reopen their withholding of removal claim on the basis of changed country conditions. We have jurisdiction under 8 U.S.C. § 1252. We review the agency’s denial of a motion to reopen for abuse of discretion. Nababan v. Garland, 18 F.4th 1090, 1094 (9th Cir. 2021). We deny the petition. Generally, a noncitizen may only “file one motion to reopen proceedings,” which “shall be filed within 90 days of the date of entry of a final administrative order of removal.” 8 U.S.C. § 1229a(c)(7); see 8 C.F.R. § 1003.2(c)(2). These requirements do not apply if the respondent can establish “changed country conditions.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see 8 C.F.R. § 1003.2(c)(3)(ii). Petitioners filed their motion years after the deadline, and this is their third motion to reopen. Thus, Petitioners had to “clear four hurdles” to overcome the time and number bars: they needed to (1) produce evidence that country conditions had changed; (2) submit evidence that was material; (3) demonstrate that the evidence was not available at the previous proceeding; and (4) show “that the new evidence, when considered together with the evidence presented at the original hearing,” would establish prima facie eligibility for withholding of removal. Toufighi v. Mukasey, 538 F.3d 988, 996 (9th Cir. 2008). The BIA may deny a motion to reopen for “failing to meet any of these burdens.” Id. 2 Here, Petitioners contend that conditions in Indonesia have materially changed for Christians and thus, their withholding application warrants reopening. However, they have not presented any arguments regarding their prima facie eligibility for withholding of removal, let alone evidence demonstrating an “individualized risk” of persecution as required. See Wakkary v. Holder, 558 F.3d 1049, 1065–66 (9th Cir. 2009) (holding that a petitioner must show that he “will be singled out individually” to meet the requirements of withholding of removal). As substantial evidence supports the BIA’s denial of Petitioners’ motion to reopen, we need not determine whether Petitioners met their evidentiary burden to demonstrate changed country conditions.1 See Toufighi, 538 F.3d at 996. PETITION FOR REVIEW DENIED. 1 Notably, while the BIA did err in concluding that Petitioners failed to meet the requirements of 8 C.F.R. § 1003.2(c)(1), as Petitioners were not required to file a new application where they were only seeking to reopen their existing withholding of removal application, that error was harmless. See Aliyev v. Barr, 971 F.3d 1085, 1087 (9th Cir. 2020). 3
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