Marsadu v. Holder, Jr. , 748 F.3d 55 ( 2014 )

United States Court of Appeals
For the First Circuit
No. 13-1024
NOVA FLORA MARSADU and ROLY RONDONUWU,
Petitioners,
v.
ERIC H. HOLDER, JR.,
UNITED STATES ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Torruella and Kayatta, Circuit Judges.
Thomas V. Massucci, on brief for petitioners.
Justin R. Markel, Trial Attorney, Office of Immigration
Litigation, Civil Division, Stuart F. Delery, Acting Deputy
Assistant Attorney General, Civil Division, Department of Justice,
and Carl H. McIntyre, Assistant Director, Office of Immigration
Litigation, on brief for respondent.
April 4, 2014
TORRUELLA, Circuit Judge. Petitioners, Nova Flora
Marsadu ("Marsadu") and Roly Rondonuwu ("Rondonuwu") (collectively,
"Petitioners"), petition for review of the Board of Immigration
Appeals' ("BIA") order denying their motion to reopen removal
proceedings. Specifically, Petitioners dispute the BIA's finding
that they failed to demonstrate a prima facie case for asylum. We
disagree with Petitioners, and find that they have failed to
demonstrate error sufficient to warrant reopening of their removal
proceedings. After careful consideration, we thus deny their
petition for review.
I. Background
Petitioners are both native citizens of Indonesia and are
of the Christian faith. They have been married since 1997; they
have two children together, both of whom were born in the United
States. On April 22, 2001, the Department of Homeland Security
("DHS") admitted Rondonuwu as a nonimmigrant B-1 visitor with
authorization to remain in the United States until July 21, 2001.
On May 7, 2002, the DHS admitted Marsadu as a nonimmigrant B-2
visitor with authorization to remain in the United States until
November 6, 2002.
On February 21, 2003, Marsadu submitted an application
for asylum, 8 U.S.C. § 1158(a), and withholding of removal, 8
U.S.C. § 1231(b)(3)(A), as well as for relief under Article 3 of
the United Nations Convention Against Torture ("CAT"), all based on
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her fears of being persecuted in Indonesia due to her Christian
faith. On April 16, 2003, while Marsadu's application was pending,
the DHS placed Rondonuwu in removal proceedings. On September 28,
2004, Rondonuwu filed an application for asylum, mirroring
Marsadu's theory on her application for withholding of removal.
Thereafter, on August 4, 2006, the DHS also placed Marsadu in
removal proceedings. The Immigration Judge ("IJ") consolidated
Petitioners' cases and after a hearing on the merits on April 26,
2007, denied all of their claims.
Subsequently, Petitioners filed a timely notice of appeal
to the BIA. The BIA affirmed the IJ's decision, and denied
Petitioners' appeal on March 13, 2009. Petitioners thereafter
moved this court to review the BIA's denial of the appeal, and on
October 30, 2009, we denied their request.
On July 9, 2012, Petitioners filed an untimely motion
with the BIA to reopen removal proceedings, arguing that they are
prima facie eligible for asylum due to recent changes in country
conditions in Indonesia that put them at risk of persecution.
Specifically, Petitioners argued that there had been a recent rise
in violence in Indonesia led by radical Islamists against Christian
minority groups, and that the Indonesian government had become
increasingly tolerant of these attacks. To support their
contentions, Petitioners relied heavily on an affidavit from
Dr. Jeffrey A. Winters, Ph.D., an expert in Southeast Asian
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political economy and comparative politics, with an emphasis on
Indonesia.
On December 4, 2012, the BIA denied Petitioners' motion
to reopen removal proceedings. The BIA concluded that Petitioners'
evidence in support of their motion was insufficient to show "a
change in conditions or circumstances in Indonesia material to
[their] asylum claim." In particular, the BIA noted that:
Petitioners' evidence was not individualized to reflect dangers
posed specifically to them; Petitioners had failed to demonstrate
a pattern or practice of persecution of Christians in Indonesia;
and Petitioners did not demonstrate that attacks on Christians in
Indonesia were a recent development, as such violence had been
occurring at the time of Petitioners' 2007 asylum hearing.
Therefore, the BIA concluded that Petitioners had failed to
demonstrate a reasonable likelihood that they would face religious
persecution if they returned to Indonesia. This petition followed.
II. Discussion
A "denial of a motion to reopen will be upheld 'unless
the complaining party can show that the BIA committed an error of
law or exercised its judgment in an arbitrary, capricious, or
irrational way.'" Tawadrous v. Holder, 565 F.3d 35, 38 (1st Cir.
2009) (quoting Tandayu v. Mukasey, 521 F.3d 97, 100 (1st Cir.
2008)). In conducting this review, we accept the BIA's findings of
fact, "as long as they are supported by substantial evidence," and
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we review legal conclusions de novo. Smith v. Holder, 627 F.3d
427, 433 (1st Cir. 2010).
In general, "an alien may file only one motion to reopen
removal proceedings . . . and that motion must be filed no later
than 90 days after the date on which the final administrative
decision was rendered in the proceeding sought to be reopened." 8
C.F.R. § 1003.2(c)(2). However, these limitations do not apply to
motions to reopen proceedings "based on changed circumstances
arising . . . in the country to which deportation has been ordered,
if such evidence is material and was not available . . . at the
previous hearing." 8 C.F.R. § 1003.2(c)(3)(ii). A petitioner's
evidence of "changed circumstances" must demonstrate an
"intensification or deterioration of [his] country['s] conditions,
not their mere continuation." Tawadrous, 565 F.3d at 38. Thus, a
petitioner's motion to reopen must meet two threshold requirements:
(1) it must establish "a prima facie case for the underlying
substantive relief sought," and (2) it must introduce "previously
unavailable material, evidence." Fesseha v. Ashcroft, 333 F.3d 13,
20 (1st Cir. 2003) (internal quotation marks omitted) (quoting
I.N.S. v. Abudu, 485 U.S. 94, 104 (1988)).
For a petitioner to establish a prima facie case for
asylum, he must show that he is "unable or unwilling" to return to
his country of origin "because of persecution or a well-founded
fear of persecution on account of race, religion, nationality,
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membership in a particular social group, or political opinion." 8
U.S.C. § 1101 (a)(42)(A). A petitioner may demonstrate his "well-
founded fear of persecution" with evidence establishing a
"reasonable likelihood" that he will face future persecution in his
country, provided that his fears are both subjectively genuine and
objectively reasonable. Smith, 627 F.3d at 437; 8 C.F.R. § 208.13(b). To prove that his fears are objectively reasonable, a
petitioner typically must either: (a) produce "credible, direct,
and specific evidence supporting a fear of individualized
persecution in the future," Li Sheng Wu v. Holder, 737 F.3d 829,
832 (1st Cir. 2013) (internal quotation marks omitted) (quoting
Decky v. Holder, 587 F.3d 104, 112 (1st Cir. 2009)); or (b) he must
"establish[] that there is a pattern or practice in his . . .
country of nationality . . . of persecution of a group of persons
similarly situated to the [petitioner] on account of race,
religion, nationality, membership in a particular social group, or
political opinion," 8 C.F.R. § 1208.13(b)(2)(iii)(A).
Petitioners marshal, essentially, three arguments on
appeal. They argue that the BIA erroneously characterized the
evidence of country conditions, that it was legal error for the BIA
to require a showing of individualized risk of harm, and that the
BIA incorrectly relied on our decision in Decky v. Holder, 587 F.3d
104 (1st Cir. 2009) for its finding that there is no ongoing
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pattern of persecution against Christians in Indonesia. None of
these theories holds water.
Petitioners' first argument, that the BIA erred in
weighing and characterizing the evidence of changed country
conditions, is twofold. Petitioners initially contend that the BIA
was myopic in assessing country conditions in Indonesia, basing its
decision only on the fact that country conditions were already
difficult for Christians in 2007, when Petitioners first applied
for asylum. They insist that the BIA should have assessed the
deterioration of those conditions since 2007, up to the year 2012,
as described in Dr. Winters's report.
A review of the record shows this precisely is what the
BIA endeavored to do: the BIA compared Petitioners' evidence from
the 2007 hearing with the newly proffered evidence, and noted that
according to Dr. Winters, "from 2009 forward the level of violence
and intolerance directed at religious minorities has increased at
an alarming rate." The BIA concluded that these conditions did not
differ significantly from those present in 2007. The BIA rested
its decision on other evidence in the record, as well as parts of
Dr. Winters's report, that indeed could support the conclusion that
aggression by Muslim extremists against Christians and other
minority groups was present to a similar degree in 2007.
Ultimately, the BIA addressed the correct issue, examined all of
the evidence of country conditions for the years 2007 through 2012
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before it, and concluded that, notwithstanding Dr. Winters's take
on the matter, Petitioners failed to show an "intensification or
deterioration of country conditions." Tawadrous, 565 F.3d at 38.
The BIA took into account the evidence before it, and found only a
"mere continuation" of the same general conditions present in 2007.
Id. On this record, we cannot hold that the BIA's conclusion
constitutes an abuse of discretion.
Petitioners also claim that the BIA failed to properly
address, and seriously mischaracterized, Dr. Winters's report.
They complain that the BIA reduced the thirty-eight page report to
a mere statement that radical Islamic groups had gained a foothold
in Indonesia since 2004, and that acts of religious intolerance
towards religious minorities, one of which Petitioners happen to
belong to, had increased since 2009. This argument amounts to
little more than a challenge to how the BIA weighed the evidence,
and, for that reason alone, it is unavailing. Cf. Le Bin Zhu v.
Holder, 622 F.3d 87, 92 (1st Cir. 2010) (holding that BIA was well
within its discretion in not affording great evidentiary weight to
letter submitted by petitioner for the purpose of showing changes
in country conditions); see also Xiao Ji Chen v. U.S. Department of
Justice, 471 F.3d 315, 342 (1st Cir. 2006) (explaining that the
weight afforded to published reports of the Department of State
lies largely within the discretion of the IJ). Furthermore, the
BIA's description of the contents of that report is accurate,
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however brief, and the BIA need not parse out its take on every
evidentiary detail on record. Méndez-Barrera v. Holder, 602 F.3d
21, 25 (1st Cir. 2010). That Dr. Winters's report did not deliver
a decision in their favor, and that the BIA's description of the
report is more succinct than Petitioners would have preferred, does
not entail a sufficient affront to the broad discretion we afford
the BIA on motions to reopen. Le Bin Zhu, 622 F.3d at 91 ("the BIA
enjoys a broad measure of latitude in passing upon" motions to
reopen).
Even if Petitioners had shown a material change in
Indonesia's conditions, they still would have needed to establish
a prima facie case for asylum. Fesseha v. Ashcroft, 333 F.3d 13,
20 (1st Cir. 2003) (internal citation and quotations omitted)
("There are two threshold requirements for a motion to reopen: that
it establish a prima facie case for the underlying substantive
relief sought and that it introduce previously unavailable,
material evidence."). Petitioners argue that the BIA erred as a
matter of law by requiring that they show an individualized risk of
harm if they were forced to return to Indonesia. Petitioners
contend that they need not show any risk of individualized harm,
and that they have made out a prima facie case for asylum by
showing only that that there is an ongoing pattern of persecution
against Christians in Indonesia. In other words, Petitioners argue
that the BIA erroneously required Petitioners to establish an
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individualized risk of harm, because regulatory provisions only
require a showing of individualized risk of harm if -- and only if
-- a pattern or practice of persecution cannot be established.
Because, they assert, such a pattern is clear here, they need go no
further.
Petitioners misstate the BIA's reasoning. Indeed, an
asylum applicant need not necessarily show an individualized risk
of harm in order to establish a prima facie case for asylum, and
may succeed solely on a showing of fear of persecution based on
membership in a particular social group. Tandayu v. Mukasey, 521
F.3d 97, 99 n.1 (1st. Cir. 2008)(citing Sharari v. Gonzáles, 407
F.3d 467, 474 (1st Cir. 2005)). Stated otherwise, absent a showing
of individualized risk of harm, an asylum applicant can only
succeed on a prima facie case if he shows a pattern of persecution
against a particular social group to which he belongs. Kho v.
Keisler, 505 F.3d 50, 54 n.3 (1st Cir. 2007).
That is precisely the analysis the BIA undertook. The
BIA weighed the evidence, articulated that weight, and correctly
found that Petitioners provided no proof of an individualized risk
of harm -- which they do not dispute -- and only then proceeded to
find that the evidence presented was also insufficient to establish
a pattern of persecution against Christians in Indonesia. The
BIA's conclusion is unremarkable, especially considering that the
'pattern or practice' standard "is demanding and in substance
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requires a showing of regular and widespread persecution creating
a likelihood of persecution of all persons in the group." Rasiah
v. Holder, 589 F.3d 1, 5 (1st Cir. 2009) (internal citation
omitted) (emphasis added). Accordingly, the BIA did not err, and
Petitioners' claim fails on this front as well.
Finally, Petitioners aver that the BIA abused its
discretion by relying on purportedly irrelevant case law, namely
the case of Decky v. Holder, 587 F.3d 104 (1st Cir. 2009). In
Decky we affirmed the BIA's denial of asylum, and similarly found
that petitioners there had failed to demonstrate a pattern or
practice of persecution against Christians in Indonesia. Id. at
113. Petitioners protest that the BIA improperly cited to Decky, a
2009 case, in support of its finding that there existed no pattern
of persecution against Christians in Indonesia at the time
Petitioners moved to reopen in 2012. Petitioners contend that the
court's findings in Decky regarding country conditions in Indonesia
bear only upon the state of affairs in 2004 to 2005, the timeline
relevant to the Decky petitioners' claim for withholding of
removal. Petitioners thus argue that Decky is irrelevant to a
determination of country conditions in Indonesia in 2012.
The citation to Decky follows the BIA's finding that
Petitioners' evidence failed to show a pattern of persecution
against Christians in Indonesia; the BIA provides no page citation.
The citation is preceded by a signal, "[s]ee, e.g.", which, as
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legal citation enthusiasts would explain, stands for the
proposition that what immediately follows, serves as exempli gratia
of what was stated before. We need not tread the path of
speculation, and find it rather obvious that the BIA's citation of
Decky was thus presented only as an example of a case where, as
here, we have not found sufficient proof for a prima facie showing
of a pattern of persecution. Accordingly, the BIA's use of Decky
was not legal error.
III. Conclusion
The BIA is afforded quite a high level of deference when
acting on motions to reopen removal proceedings. Holder, 622 F.3d
at 91. Accordingly, we only meddle in the BIA's business where we
find it has abused this ample discretion; an exceedingly high bar
that Petitioners have failed to meet. Therefore, their petition
for review is denied.
DENIED.
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