Tommy Sudiartate v. Merrick Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 14 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT TOMMY BENNY SUDIARTATE, No. 19-72585 Petitioner, Agency No. A096-499-646 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted October 12, 2021** Before: TALLMAN, RAWLINSON, and BUMATAY, Circuit Judges. Tommy Benny Sudiartate, a native and citizen of Indonesia, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen. Mohammed v. * 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). Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). We deny the petition for review. The BIA did not abuse its discretion in denying Sudiartate’s motion to reopen as untimely, where the motion was filed more than seven years after the final order of removal, and where Sudiartate failed to demonstrate a material change in country conditions in Indonesia to qualify for the regulatory exception to the time limitation for filing a motion to reopen. See 8 C.F.R. § 1003.2(c)(2), (3)(ii); Najmabadi v. Holder, 597 F.3d 983, 990-91 (9th Cir. 2010) (BIA did not abuse its discretion in denying motion to reopen where petitioner failed to submit material evidence of qualitatively different country conditions). Sudiartate’s motion to take judicial notice is denied. See Fisher v. INS, 79 F.3d 955, 963-64 (9th Cir. 1996) (en banc) (court’s review is limited to the administrative record). The temporary stay of removal remains in place until issuance of the mandate. PETITION FOR REVIEW DENIED. 2 19-72585 19-72585 Court of Appeals for the Ninth Circuit ca9 9th Cir. Tommy Sudiartate v. Merrick Garland 14 October 2021 Agency Unpublished 761d2db2843618aaf4107e3c09c2366ead3d7b50

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