Sutarsim v. Barr ( 2020 )

United States Court of Appeals
For the First Circuit
No. 18-1937
SUSAN SUTARSIM, a/k/a Phan San San;
RUDIJANTO LUKMAN; FELCIA LNU; JESSLYN LNU,
Petitioners,
v.
WILLIAM P. BARR,
UNITED STATES ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Selya, and Barron,
Circuit Judges.
Kerry E. Doyle and Graves & Doyle on brief for petitioners.
Laura Halliday Hickein, Trial Attorney, Office of Immigration
Litigation, Joseph H. Hunt, Assistant Attorney General, Civil
Division, and Shelley R. Goad, Assistant Director, Office of
Immigration Litigation, on brief for respondent.
May 1, 2020
LYNCH, Circuit Judge. In 2008, Susan Sutarsim applied
for asylum, withholding of removal, and protection under the
Convention Against Torture ("CAT") for herself, her husband
Rudijanto Lukman, and her two daughters, Felcia and Jesslyn.1 An
immigration judge ("IJ") denied the application in 2011, and the
Board of Immigration Appeals ("BIA") affirmed that denial in 2012.
Six years later, in 2018, Sutarsim filed an untimely motion to
reopen the family's removal proceedings, which the BIA denied.
She now petitions for review of that denial. We deny the petition.
I.
Sutarsim and her family are natives and citizens of
Indonesia. They were admitted to the United States on June 28,
2008, on six-month nonimmigrant visitor visas. On July 8, 2008,
Sutarsim submitted an application for asylum, statutory
withholding of removal, and withholding of removal under the CAT.
The application alleged that the family faced harm in Indonesia
based on their Chinese ethnicity and Buddhist religion. On January
8, 2009, the Department of Homeland Security issued a notice to
appear charging the family as removable under 8 U.S.C.
§ 1227(a)(1)(B) for having overstayed their visas. In response,
1 Because the claims of Lukman and Sutarsim's two
daughters are derivative of Sutarsim's claims, we refer to all
four together as "the petitioner."
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Sutarsim admitted the allegations in the notice to appear and
conceded that the family was removable.
On January 11, 2011, an IJ held a hearing on the merits
of Sutarsim's asylum claim. Sutarsim and Lukman both testified,
and the IJ found them both "generally credibl[e]."
At the hearing, Sutarsim and Lukman testified as
follows. Their family is ethnic Chinese. When Sutarsim was a
child, other children at school would harass her by calling her
Chinese and chasing her. In May 1998, radical Islamists terrorized
the Chinese community in Indonesia. Sutarsim witnessed the
Islamists' riots in Jakarta but was able to get home unharmed.
On March 29, 2007, Sutarsim and Lukman were in their car
and came upon an angry demonstration by an Islamic extremist group.
One demonstrator touched their car, and Lukman rolled down the
window and asked him to be careful. The demonstrator replied,
"What's the problem, you Chinese? Get out." The demonstrators
then attacked the car, breaking a mirror and cracking the front
window. When Lukman then got out of the car, the demonstrators
attacked him, stabbed him, and stole his wallet. Lukman required
stitches on his chest. He later believed that some of the
demonstrators were stalking his house, having found it from the
information in his wallet, as a means of threatening him.
On June 1, 2008, Sutarsim and Lukman were again in their
car and encountered bad traffic. They saw people getting beaten
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up. Because Sutarsim felt afraid, they turned the car around and
went home. They later learned from the news that they had
encountered another demonstration by the same Islamic extremist
group.
Because of these incidents, the family left Indonesia
for the United States on June 28, 2008. They feared that they
would continue to be the target of ethnic violence if they were to
return to Indonesia.
The IJ denied Sutarsim's application, finding that she
had not established a well-founded fear of persecution. The IJ
found that Sutarsim was not the victim of past persecution because
the May 1998, March 2007, and June 2008 incidents did not "cause[]
harm to [Sutarsim] such as to rise to the level of persecution."
The IJ found that the May 1998 rioting was a manifestation of
"general national unrest" that "was eventually quelled by the
government" and "was not directed at [Sutarsim] in the form of
persecution." As to Lukman, the IJ found that the March 2007
attack on him "might cause [Sutarsim] to have a well-founded fear
of persecution upon her return to Indonesia," but that Lukman had
not submitted an independent asylum application and stayed in
Indonesia for nearly a year after the attack. The IJ found that
"discrimination against ethnic Chinese in Indonesia" was not "so
pervasive and intolerable and either government-directed or
condoned as to be tantamount to persecution." Finally, the IJ
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found that Sutarsim had not established that it was more likely
than not that she would be tortured if she returned to Indonesia
and that the torture would be inflicted by or with the acquiescence
of a public official.
On January 21, 2011, Sutarsim filed a motion to
reconsider with the IJ, which was denied on January 25, 2011,
without opinion.
Sutarsim then appealed to the BIA both the merits
decision and the denial of the motion to reconsider. On June 20,
2012, the BIA affirmed the IJ's merits decision. It found that
"the incidents [Sutarsim] described, while frightening, did not
rise to the level of persecution because they lacked severity or
they were isolated acts of criminal conduct or lawlessness." It
also found that Sutarsim "failed to show evidence that she was
individually targeted because of her ethnicity." Finally, the BIA
found that Sutarsim had not shown a likelihood that she would be
tortured if she returned to Indonesia. The BIA also affirmed the
denial of the motion to reconsider. It held that Sutarsim had not
produced new material evidence not available at the merits hearing.
On July 19, 2012, Sutarsim filed with the BIA a motion
to reconsider its decision dismissing her appeal of the IJ's denial
of the motion to reconsider. The motion argued that the IJ's
failure to explain the motion's denial was error that required
remand. On October 23, 2012, the BIA granted the motion and
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remanded the case to the IJ. On January 25, 2013, the IJ again
denied the motion to reconsider. The IJ held that Sutarsim had
not submitted any new evidence that was not available at the time
of the merits hearing.
On February 25, 2013, Sutarsim appealed the second
denial to the BIA. On February 23, 2015, the BIA dismissed the
appeal.
On May 31, 2016, Sutarsim's daughters voluntarily
identified themselves to Immigration and Customs Enforcement
("ICE"), surrendered their Indonesian passports, and submitted to
voluntary monitoring. They were released as part of Operation
Indonesian Surrender, "a humanitarian program initiated by [ICE]"
under which "Indonesian nationals subject to final orders of
removal could make themselves known to ICE and, in ICE's
discretion, receive temporary stays of removal, accompanied by
renewable orders of supervision." Sihotang v. Sessions, 900 F.3d
46, 49 n.1 (1st Cir. 2018). On February 8, 2017, ICE denied the
daughters' applications for another stay of removal and later
ordered them to report with plane tickets back to Indonesia.
On April 12, 2018, Sutarsim filed with the BIA an
untimely motion to reopen the removal proceedings, alleging that
materially changed conditions in Indonesia excused her failure to
comply with the filing deadline for motions to reopen. The motion
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alleged that violence against and intolerance of religious
minorities had escalated since 2011.
On August 31, 2018, the BIA denied the motion as
untimely. It found that Sutarsim's evidence did not show a
material change with respect to Chinese Buddhists. Specifically,
the BIA concluded:
The respondents have not shown that an
extremist group has directly threatened them
or any family member since their hearing in
2011. Although there is some religious
violence in Indonesia, the evidence presented
with the motion [to reopen] largely reflects
ongoing sporadic terrorism and mistreatment of
Chinese Christians, as opposed to Buddhists,
and is similar to what existed before the
respondents' 2011 hearing. Further, the
respondents have not demonstrated a pattern or
practice of persecution against Chinese
Buddhists in Indonesia.
(citations omitted).
On September 28, 2018, Sutarsim timely filed a petition
for review with this court.
II.
"Motions to reopen removal proceedings are contrary to
'the compelling public interests in finality and the expeditious
processing of proceedings' and are thus disfavored." Bbale v.
Lynch, 840 F.3d 63, 66 (1st Cir. 2016) (quoting Roberts v.
Gonzales, 422 F.3d 33, 35 (1st Cir. 2005)). We review a denial of
a motion to reopen for abuse of discretion. See Roberts, 422 F.3d
at 35. The petitioner must show that the BIA committed an error
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of law or acted "in an arbitrary, capricious, or irrational"
manner. Raza v. Gonzales, 484 F.3d 125, 127 (1st Cir. 2007). We
must accept the BIA's factual findings as long as they are
"supported by reasonable, substantial, and probative evidence on
the record considered as a whole." Hasan v. Holder, 673 F.3d 26,
33 (1st Cir. 2012) (quoting Guzman v. INS, 327 F.3d 11, 15 (1st
Cir. 2003)).
Motions to reopen removal proceedings must generally be
filed within ninety days of the final administrative order. 8
C.F.R. § 1003.2(c)(2). But "a petitioner may file a motion to
reopen at any time if he brings the motion seeking to apply for
asylum based on changed circumstances arising in the country of
nationality." Xin Qiang Liu v. Lynch, 802 F.3d 69, 75 (1st Cir.
2015) (citing 8 C.F.R. § 1003.2(c)(3)(ii)). To be eligible for
this exception, a petitioner must demonstrate "that the change in
country conditions is material and must support that showing by
evidence that was either unavailable or undiscoverable at the time
of her merits hearing." Nantume v. Barr, 931 F.3d 35, 38 (1st
Cir. 2019) (citing Garcia-Aguilar v. Whitaker, 913 F.3d 215, 218
(1st Cir. 2019)). She must also "show prima facie eligibility for
the substantive relief that she seeks." Id. (citing Chen v. Lynch,
825 F.3d 83, 87 (1st Cir. 2016)). These requirements apply equally
to a petitioner's claims for asylum, withholding of removal, and
CAT protection. Id.
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The petitioner argues that the BIA's denial of her motion
to reopen was an abuse of discretion. In doing so, she relies
heavily on two arguments not available to her before the BIA
because they arose after the BIA decision. She first argues that
the BIA has reached "conflicting outcome[s]" in her case and other
"virtually identical cases." She argues that, in August 2018, the
BIA reopened twenty similar cases of individuals and families who
had participated in Operation Indonesian Surrender. From this,
she argues that the BIA's "disparate treatment" in not reopening
her proceedings was arbitrary and capricious.
The cases the petitioner offers are cases in which the
BIA reopened the proceedings of Indonesian citizens who were
Chinese Christians based on new evidence submitted in those
proceedings of worsening conditions for Chinese Christians in
Indonesia. The petitioner argues that she submitted "evidence of
significant radical Muslim groups attacking non-Muslims from
religious minorities in Indonesia." But the BIA stated that
Sutarsim's family is Buddhist, not Christian. It found that the
evidence submitted with Sutarsim's motion to reopen did not
demonstrate changed conditions in Indonesia for Chinese Buddhists.
The BIA's conclusion that Sutarsim had not met her burden to show
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changed country conditions was far from arbitrary and certainly
not an abuse of discretion.2
The petitioner secondly argues that this court's
decision in Sihotang, which was decided after her motion to reopen
was filed, requires a contrary conclusion. Not so. The petitioner
in Sihotang was an Indonesian national and evangelical Christian
"for whom public proselytizing [wa]s a religious obligation." 900
F.3d at 50. He moved to reopen his asylum proceeding, arguing
that conditions in Indonesia had deteriorated for evangelical
Christians. Id. at 49. He submitted copious evidence of these
conditions that specifically described risks faced by evangelical
Christians, as compared to other Christians, and to Christians
attempting to practice their faith in public. Id. at 51-52. The
BIA denied his motion, finding that "he had shown nothing more
than the persistence of negative conditions for Indonesian
Christians." Id. at 50. This court vacated the BIA's decision,
holding that the BIA had "wholly failed to evaluate whether . . .
there [wa]s a meaningful distinction between Christians who
2 The petitioner also claims that the BIA reopened
proceedings in two other cases "solely because" they involved
"named parties in" district court litigation challenging ICE's
decision to remove aliens who had previously received stays of
removal through Operation Indonesian Surrender. See Devitri v.
Cronen, 289 F. Supp. 3d 287, 290-91 (D. Mass. 2018). But the
government had not responded to the motions to reopen those two
cases, and the district court had entered a preliminary injunction
staying their removal. Those cases do not bear on the outcome of
this case.
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practice their faith in private and evangelical Christians . . .
for whom public proselytizing is a central tenet." Id. By
contrast, the petitioner in this case has not submitted any
specific evidence that Buddhists, or Chinese Buddhists, now face
heightened risks in Indonesia. Rather, she points exclusively to
evidence of heightened risks faced by Christians and generalizes
from there that all religious minorities face higher risks.
The petitioner also argues that the BIA's mistaken claim
in its decision that no asylum application was included with the
motion to reopen requires remand. It is true that the BIA's
decision incorrectly states that the petitioner did "not submit[]
a new asylum application with [her] motion" even though a new
application was attached to the motion. But the petitioner points
to no substantive information in the new application that the BIA
ignored, and the application itself appears to include none. The
answers on the application state only "Please See Statement," but
no statement is attached. Even if the BIA failed to consider this
application, the application would have provided no basis for the
agency to reach a different decision on remand.
III.
The petition for review is denied.
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