Darwin Theodore v. MONTY WILKINSON, Acting Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DARWIN THEODORE,
Petitioner,
v.
MONTY WILKINSON, Acting Attorney
General,
Respondent.
No. 18-72412
Agency No. A099-905-732
MEMORANDUM *
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 9, 2020
Pasadena, California
Before: BEA, THAPAR, ** and COLLINS, Circuit Judges.
Petitioner Darwin Theodore seeks review of the denial by the Board of
Immigration Appeals (BIA) of his motion to reopen due to his failure to establish
changed country conditions and prima facie eligibility for relief. We have
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Amul R. Thapar, United States Circuit Judge for the U.S.
Court of Appeals for the Sixth Circuit, sitting by designation.
FILED
JAN 26 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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jurisdiction under 8 U.S.C. § 1252 to review denials of motions to reopen. We
review denials of motions to reopen for abuse of discretion, “although [de novo]
review applies to the BIA’s determination of purely legal questions.”
Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2002) (citation omitted). Factual
findings are reviewed for substantial evidence. Sharma v. INS, 89 F.3d 545, 547
(9th Cir. 1996). We deny the petition.
Because Theodore’s motion is based on changed country conditions, there is
no time limit within which he must have filed it. 8 C.F.R. § 1003.2(c)(3)(ii). In
addition to establishing changed country conditions, Theodore must also establish
prima facie eligibility for relief. INS v. Abudu, 485 U.S. 94, 104 (1988).
Here, the BIA observed that the evidence submitted by Theodore of violence
in Indonesia “largely reflects ongoing sporadic terrorism that existed before” his
2011 hearing. The BIA also characterized Theodore’s parents’ 2017 letter
describing worsening conditions as conclusory in nature and not reflective of a
material change in circumstances in Indonesia for Chinese Christians. The letter
stated that the “situation presently in Indonesia is not better than before.
Especially with [the 2016 protests against the ethnic Chinese Christian governor],
where he was accused of defying the religion of Islam, that resulted the [sic]
Christians are targeted by Front Defender of Islam (FPI), especially the Chinese

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Christians.” Notably, the letter did not cite any other incidents, and did not reflect
that anyone they personally knew had been harmed by anti-Chinese or
anti-Christian sentiment. Thus, substantial evidence supports the BIA’s
determination that Theodore failed to establish changed country conditions.
Theodore also did not submit sufficient evidence of a risk of individualized
harm. In Salim v. Lynch, 831 F.3d 1133 (9th Cir. 2016), Salim offered evidence
supporting his claim of individualized risk of future persecution, namely “a letter
from his sister in Jakarta describing the recent targeting of their local church.” Id.
at 1136. The 2017 letter from Theodore’s parents did not state that anyone they
personally knew had been targeted, but merely that they were “very worried that
the 1998 incident [(referring to a period of violence against Christians and
Chinese)] might happen again.” Theodore has therefore failed to establish prima
facie eligibility for relief.
Accordingly, the BIA acted within its discretion when it denied the motion
to reopen. Thus, the petition for review is DENIED.

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