Opinion
16-71188
10-20-2022
ARIEF KURNIADI JACOBSON, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted October 18, 2022 [**] San Francisco, California
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A098-267-268
Before: WALLACE, S.R. THOMAS, and M. SMITH, Circuit Judges.
MEMORANDUM [*]
Petitioner Arief Jacobson petitions for review of the Board of Immigration Appeals' ("BIA") order denying his third, untimely motion to reopen. We have jurisdiction under 8 U.S.C. § 1252. "We review the denial of a motion to reopen for abuse of discretion." Rodriguez v. Garland, 990 F.3d 1205, 1209 (9th Cir. 2021). We deny the petition. Because the parties are familiar with the facts, we need not recount them here.
The BIA did not abuse its discretion in denying Jacobson's motion to reopen based on changed country conditions when it concluded that Jacobson's conversion to Christianity occurred prior to his 2007 hearing and so was not "new" for purposes of reopening. "For the BIA to grant a motion to reopen based on changed country conditions, a petitioner must clear four hurdles: (1) he must produce evidence that country conditions have changed[;] (2) the evidence must be material; (3) the evidence must not have been available previously[;] and (4) the new evidence would establish prima facie eligibility for the relief sought." Rodriguez, 990 F.3d at 1209 (cleaned up, citations omitted). "If [the new evidence] was available or capable of being discovered at that time, it cannot provide a basis for reopening." Goel v. Gonzales, 490 F.3d 735, 738 (9th Cir. 2007).
While the BIA and the parties considered whether conditions changed in Indonesia following Jacobson's 2009 hearing for voluntary departure, the appropriate date from which to measure changed country conditions is 2007, the date of Jacobson's merits hearing. See Malty v. Ashcroft, 381 F.3d 942, 946 (9th Cir. 2004). Any error is harmless. See Zamorano v. Garland, 2 F.4th 1213, 1228 (9th Cir. 2021).
Jacobson was a Christian in 2007 at the time of his merits hearing. He testified at the hearing that "Muslims were attacking the churches and . . . putting bombs" in them. The evidence he offers now-testimony that he is now a Christian, and that Islamic radicals are persecuting Christians in his home country-is not new evidence, previously unavailable to him. Id. Nor does it demonstrate a change in country conditions. See Rodriguez, 990 F.3d at 1210 ("General references to 'continuing' or 'remaining' problems are not evidence of a change in a country's conditions.") (cleaned up) (emphasis in original). We therefore deny Jacobson's petition for failing to clear the first and third hurdles. Id. at 1209, 1211. We do not address Jacobson's remaining arguments.
PETITION DENIED.
[*] 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).