Tanzil v. Attorney General of the United States
426 F. App'x 104
3rd Cir.2011Background
- Tanzil, a native Indonesian ethnic Chinese Christian, overstayed his visitor visa and sought asylum, withholding of removal, and CAT protection in removal proceedings.
- IJ denied asylum as time-barred by a one-year deadline and denied withholding and CAT relief based on lack of pattern or practice; BIA affirmed.
- This Court previously denied Tanzil’s petition challenging the withholding denial, noting the government country reports did not compel a pattern or practice finding.
- Tanzil filed two motions to reopen with the BIA, the first on June 29, 2009, submitting new evidence including Indonesian government and NGO reports and Dr. Winters’ testimony.
- BIA denied the first motion to reopen as not reflecting changed country conditions; Tanzil challenged this in a petition for review and then filed a second motion to reopen/reconsider.
- The BIA granted the second motion to reconsider but again affirmed that the evidence did not show changed conditions warranting reopening; Tanzil petitioned again for review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the BIA abused its discretion in denying reopenings | Tanzil claims the evidence showed changed conditions warranting reopening. | BIA properly weighed evidence and found no substantial change in Indonesia conditions. | No abuse of discretion; decisions affirmed. |
| Whether the BIA adequately analyzed submitted evidence | BIA failed to substantively analyze CERD/NGO reports and expert testimony. | BIA considered evidence; its recitation sufficed to show consideration and did not require exegesis. | BIA's consideration was adequate. |
| Whether the court should use abuse-of-discretion review for motions to reopen | Review should be de novo for legal questions and standards. | Review under abuse of discretion; standard is well-established for agency refusals to reopen. | Proceed under abuse of discretion standard. |
| Whether the NGO report and Winters testimony demonstrated changed country conditions | The evidence shows worsening conditions and systemic discrimination against ethnic Chinese. | The evidence is equivocal and does not establish a pattern or changes meeting the threshold for reopening. | No changed-country-conditions finding; no reopening warranted. |
Key Cases Cited
- Abdulai v. Ashcroft, 239 F.3d 542 (3d Cir.2001) (requires showing active consideration; burden on petitioner)
- Toussaint v. Att'y Gen., 455 F.3d 409 (3d Cir.2006) (abuse of discretion standard for BIA decisions)
- Luntungan v. Att'y Gen., 449 F.3d 551 (3d Cir.2006) (circumscribed review of legal questions in motion to reopen)
- Sioe Tjen Wong v. Att'y Gen., 539 F.3d 225 (3d Cir.2008) (rejects Ninth Circuit’s 'disfavored group' analysis)
- Wong v. Att'y Gen., 539 F.3d 225 (3d Cir.2008) (references background analysis standards in asylum context)
- McAllister v. Att'y Gen., 444 F.3d 178 (3d Cir.2006) (abuse of discretion standard in immigration proceedings)
- Zheng v. Att'y Gen., 549 F.3d 260 (3d Cir.2008) (abuse of discretion framework for motions to reopen)