Visca Imelda v. U.S. Attorney General , 611 F.3d 724 ( 2010 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-11920 ELEVENTH CIRCUIT
JULY 12, 2010
________________________
JOHN LEY
CLERK
Agency No. A097-192-098
VISCA IMELDA,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(July 12, 2010)
Before TJOFLAT, WILSON and EBEL,* Circuit Judges:
*
Honorable David M. Ebel, United States Circuit Judge for the Tenth Circuit, sitting by
designation.
WILSON, Circuit Judge:
Visca Imelda, an ethnic Chinese Christian and native and citizen of
Indonesia, petitions for review of the Board of Immigration Appeals’s(“BIA”)
order affirming the immigration judge’s (“IJ”) decision denying her application for
asylum and withholding of removal under the Immigration and Nationality Act
(“INA”), and relief under the United Nations Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”). After
review of the parties’ briefs and the record, and with the benefit of oral argument,
we grant the petition for review, vacate the BIA’s decision, and remand.
I. BACKGROUND
In August 2000, Imelda was admitted to the United States as a non-
immigrant B2 visitor with authorization to remain until February 2001. In 2003,
Imelda signed an asylum application, seeking asylum or withholding of removal on
account of race and religion, and also seeking CAT relief. In December 2005, the
Department of Homeland Security issued Imelda a notice to appear, charging her
with removability pursuant to 8 U.S.C. § 1227(a)(1)(B) as an alien who remained
in the United States for a time longer than permitted. On June 8, 2006, Imelda
conceded removability.
2
At an October 31, 2007 merits hearing before the IJ, Imelda provided
evidence to support her claims for asylum, withholding of removal, and CAT
relief. Imelda, a Protestant Chinese Indonesian from the Minahasa District of
North Sulawesi, Indonesia, testified about three different incidents of persecution.
First, in 1988, Imelda and her friend, Maria, were singing Christian worship songs
when they were attacked by native Indonesians. The natives threw bottles at Maria
and mocked the girls’ Chinese ethnicity. As the natives pushed the girls, Imelda’s
teacher, also a Chinese Indonesian, attempted to help them and was stabbed in the
shoulder. Another native asked Imelda, “Hey, Chinese, do you want to be
raped[?]” A.R. 88. Police officers arrived and asked the natives to leave, but
blamed Imelda for the incident and told the teachers to refrain from singing
Christian songs in public. Id.The second incident occurred in December 1995, when Imelda attended a
church Christmas party. The house where the party was held was ransacked by a
group of Muslim men calling themselves the “Jihad youth.” They accused Imelda
and her friends of holding secret meetings and planning to build a church, and they
prevented them from leaving the home. Imelda was taken to a separate room
where she was stripped down to her underwear, tied up, and left for several hours.
The individuals then brought two of Imelda’s friends into the room, undressed
them, and proceeded to touch the girls inappropriately. Before departing, the
3
group’s leader warned the Christians that Muslims would take over the Minahasa
District and that “you Christian dogs . . . all will die.” Id. at 91.
The third incident occurred in 1999. Imelda and her husband opened a
grocery store, in which they held church services every Monday night. A police
officer told Imelda that they could not hold such illegal services, and asked for a
bribe to “safeguard” the store. Despite giving the officer money, the store was
robbed in August 1999. An individual at an Islamic school called Imelda several
times, and informed her that the robbery had occurred in response to the church
services and that Imelda and her husband were breaking Muslim law.
Subsequently, another Muslim offered to purchase the store. Imelda testified that
she had to sell the store because her vendors refused to supply her with
merchandise. Upon hearing Imelda’s opening price, the man asked her if she
wanted the store to be burned and destroyed. Ultimately, Imelda sold the store for
much lower than her opening price.
Finally, Imelda testified that while the situation in Indonesia seemed to be
getting better from the outside, attacks on Christians and other acts of violence still
occurred. In addition to Imelda’s testimony were several documentary exhibits.
One exhibit, presented by the government, was the 2006 United States Department
of State’s Country Report for Indonesia (“2006 Country Report” or “Report”). See
U.S. Dep’t of State, Indonesia, 2006 Country Reports on Human Rights Practices
4
(Mar. 6, 2007), available at http://www.state.gov/g/drl/rls/hrrpt/2006/78774.htm.
The other exhibits pre-dated the Country Report, ranging from 2001 to 2005.
Imelda provided a 2002 letter from her parents stating that the current safety
situation in Imelda’s home province was getting worse after the arrival of
terrorists, that a bomb was found in a church, that her parents’ church had received
bomb threats, and that a pastor from Imelda’s home town had disappeared. Imelda
also submitted newspaper articles reporting the 2005 attacks in Bali by Muslim
suicide bombers. Other articles recounted the forceful closing of a number of
churches by Muslim groups. Finally, articles from 2001 and 2002 reported that on
the islands of Maluku and Sulawesi in eastern Indonesia, there was ongoing
fighting between Christians and Muslims, exacerbated in 2000 by the arrival of
Laskar Jihad, a radical Islamic militia.
After the hearing, the IJ denied Imelda’s claims for asylum, withholding of
removal, and CAT relief. Because Imelda did not raise her claims for asylum and
CAT relief in her appellate brief, those issues are deemed abandoned, and we
review only her withholding of removal claim.1 See Sepulveda v. U.S. Att’y Gen.,
401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (per curiam). As to the withholding of
1
The IJ ruled that Imelda was ineligible for asylum because she failed to file her asylum
application within one year after the date of her arrival in the United States. See 8 U.S.C. §
1158(a)(2)(B). The IJ also found that the she failed to demonstrate that she would be tortured
upon her return to Indonesia, precluding her from CAT relief. See 8 C.F.R. § 208.16(c).
5
removal claim, the IJ found that Imelda had established neither past persecution
nor that it would be more likely than not that she would suffer a future threat to her
life or freedom on account of her religion or race. The IJ found that the events of
which Imelda complained did not “rise to the level of persecution.”2 A.R. 30.
The BIA’s decision assumed past persecution and stated that even if Imelda
“had established past persecution, . . . [it] would find that the presumption of future
persecution is rebutted” because of a “fundamental change in circumstances.” Id.
at 3. On appeal, Imelda challenges the BIA’s determination that there has been a
fundamental change in country conditions sufficient to rebut her presumption that
her life or freedom would be threatened upon return to Indonesia based on her
religion and race. Imelda argues that the BIA erred in relying on the Country
Report alone in making its determination, that it did not make an individualized
finding in relation to Imelda’s situation, and that the changed conditions described
in the Country Report are not fundamental because persecution still exists for
Christians and ethnic Chinese in Indonesia.
II. STANDARD OF REVIEW
We review only the BIA’s decision because it did not expressly adopt the
IJ’s opinion or reasoning. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.
2
The IJ did not make any finding as to whether, assuming past persecution, there had been
fundamental changes in country conditions such that Imelda’s life or freedom would not be
threatened upon return to Indonesia. The BIA made this determination in the first instance.
6
2001). We review a factual determination that an alien is statutorily ineligible for
withholding of removal under the substantial evidence test, which requires
affirmance if the BIA’s decision “is supported by reasonable, substantial, and
probative evidence on the record considered as a whole.” Id. at 1283–84 (internal
quotations and citations omitted). The fact that evidence in the record may support
a conclusion contrary to the administrative findings is not enough to justify a
reversal. Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc)
(citation omitted). Under the substantial evidence standard, “we must find that the
record not only supports reversal, but compels it.” Mendoza v. U.S. Att’y Gen.,
327 F.3d 1283, 1287 (11th Cir. 2003) (citation omitted).
III. DISCUSSION
To seek withholding of removal, an alien must demonstrate that her “life or
freedom would be threatened in that country because of the alien’s race, religion,
nationality, membership in a particular social group, or political opinion.” 8
U.S.C. § 1231(b)(3)(A). An alien bears the burden of showing that she “more-
likely-than-not would be persecuted or tortured upon [her] return to the country in
question.” Mendoza, 327 F.3d at 1287.
If the alien demonstrates past persecution, there is a presumption that her
“life or freedom would be threatened upon return to [her] country.” Id.; 8 C.F.R. §
208.16(b)(1)(i). However, this presumption can be rebutted if the government
7
shows, by a preponderance of the evidence, that (1) “[t]here has been a
fundamental change in circumstances such that the applicant’s life or freedom
would not be threatened on account of [race, religion, nationality, membership in a
particular social group, or political opinion] upon the applicant’s removal to that
country;” or (2) “[t]he applicant could avoid a future threat to . . . her life or
freedom by relocating to another part of the proposed country of removal and,
under all the circumstances, it would be reasonable to expect the applicant to do
so.” 8 C.F.R. § 208.16(b)(1)(i)–(ii).3
A. Standard Applied by the BIA
As an initial matter, it is unclear from the BIA’s opinion whether it relied on
the standard for asylum, rather than the more stringent standard for withholding of
removal, in determining what presumption was at issue. The appropriate standard
for withholding of removal is whether there are fundamental changes such that the
applicant’s “life or freedom would not be threatened.” 8 C.F.R. §
208.16(b)(1)(i)(A). At first, the BIA’s opinion states that Imelda “no longer has a
3
There is a distinction between establishing future persecution as a separate claim and rebutting
the presumption of future persecution. Once past persecution, and consequently a presumption
of future persecution, is established, the burden is on the government to rebut the presumption.
However, if the petitioner has not established past persecution, there is no presumption to
overcome, and the burden is on the petitioner to demonstrate a future threat to her life or
freedom on a protected ground. Mendoza, 327 F.3d at 1287; Molina-Estrada v. INS, 293 F.3d
1089, 1096 (9th Cir. 2002). Here, the BIA assumed past persecution and discussed whether the
presumption of future persecution had been adequately rebutted by the government.
8
well-founded fear of persecution in Indonesia,” the standard for asylum. A.R. 4;
see 8 C.F.R. § 208.13(b)(1)(i)(A). However, it goes on to say that “there has been
a fundamental change in circumstances such that the respondent has not
established that she is more likely than not to face persecution in Indonesia,” which
is the standard for withholding of removal. Id.; see Mendoza, 327 F.3d at 1287.
B. Fundamental Change in Circumstances
We have held that the BIA may rely heavily on State Department reports
about a country. Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239, 1243 (11th Cir.
2004) (allowing the BIA to use such reports to determine whether the Peruvian
government presently acquiesced in activities of a Peruvian terrorist group, as
required for CAT relief). However, “[u]se of country reports cannot substitute for
an analysis of the unique facts of each applicant’s case.” Gitimu v. Holder, 581
F.3d 769, 773 (8th Cir. 2009) (citation omitted). We agree with our sister circuits
that information about general changes in a country is insufficient; instead, the
determination of whether the presumption is rebutted “requires an individualized
analysis that focuses on the specific harm suffered and the relationship to it of the
particular information contained in the relevant country reports.” Chand v. INS,
222 F.3d 1066, 1079 (9th Cir. 2000); see also Gitimu, 581 F.3d at 773; Uruci v.
Holder, 558 F.3d 14, 19–20 (1st Cir. 2009); Alibasic v. Mukasey, 547 F.3d 78, 87
(2nd Cir. 2008) (citation omitted); Palma-Mazariegos v. Gonzales, 428 F.3d 30, 35
9
(1st Cir. 2005); Chen v. INS, 359 F.3d 121, 130 (2d Cir. 2004); Berishaj v.
Ashcroft, 378 F.3d 314, 327 (3rd Cir. 2004) (citation omitted) (noting that the First,
Seventh, Ninth, and Tenth Circuits require an individualized analysis and that other
circuits apparently “have had no occasion to consider the matter”); Molina-
Estrada, 293 F.3d at 1096 (citation omitted); Krastev v. INS, 292 F.3d 1268,
1276–77 (10th Cir. 2002); Kaczmarczyk v. INS, 933 F.2d 588, 594 (7th Cir. 1991).4
While there is no bright line rule for what constitutes a “fundamental
change,” it must be a change sufficient to rebut the presumption that an alien’s life
or freedom would be threatened upon return to the country of origin. See 8 C.F.R.
§ 208.16(b)(1)(i)(A). For instance, this Court has found changed country
conditions where the government entered into a peace accord with the guerilla
groups accused of persecuting the petitioner, and such groups had been dissolved
by law. Mendoza, 327 F.3d at 1288.5 Other circuits have found that substantial
evidence has supported a fundamental change where, for example, there has been a
change in the government that persecuted the petitioner, or where the group that
4
In Shehu v. Gonzales, the Fifth Circuit stated it has not decided “what limitations should be
placed on inferences that can be drawn from generalized evidence of changed country
conditions,” but that even if it did “require the government to negate the applicant’s individual
fear of persecution, the evidence effectively negates [her] individual fear of persecution.” 443
F.3d 435, 437 (5th Cir. 2006).
5
We also summarily held, in the asylum context, that substantial evidence supported a finding of
changed country conditions in Albania. Mehmeti v. U.S. Att’y Gen., 572 F.3d 1196, 1200 (11th
Cir. 2009) (per curiam).
10
persecuted the petitioner has been taken out of power, dissolved, or assimilated
into the government.6 Courts have also found a fundamental change where the
government has undertaken significant reforms to redress past problems, such as
punishing persecutors or establishing certain freedoms by law, or where the
evidence demonstrates a substantial decline in violence against persecuted groups.7
6
See, e.g., Milanouic v. Holder, 591 F.3d 566, 570 (7th Cir. 2010) (presumption from past
persecution by Slobodan Milosevic and the Socialist party was rebutted by removal of Milosevic
from power); Gitimu, 581 F.3d at 774 (presumption from past persecution due to membership in
political party rebutted when the leader of that party was elected President of Kenya, there were
no reports of political killings or arrests, and petitioner’s family remained in Kenya without
persecution); Lybesha v. Holder, 569 F.3d 877, 881–82 (8th Cir. 2009) (presumption from past
persecution due to membership in Democratic Party rebutted where Democratic Party assumed
power); Uruci, 558 F.3d at 18, 19 (same); Pascual v. Mukasey, 514 F.3d 483, 488 (6th Cir.
2007) (presumption from past persecution based on conscription and treatment by civil patrol
and abduction by guerillas in Guatemala rebutted because civil war had ended and civil patrol
had been disbanded); Chreng v. Gonzales, 471 F.3d 14, 22 (1st Cir. 2006) (presumption from
past persecution based on how the People’s Party was treating members of opposition rebutted
when People’s Party was forced to share power with the opposition, there were no reports of
politically motivated disappearances or political prisoners, and political parties were able to
conduct their activities with relative freedom); Shehu, 443 F.3d at 439–40 (presumption from
past persecution at the hands of the Serbian-dominated police or Serbian paramilitary forces
rebutted where the Serbs were no longer in control of the government of Kosovo); Palma-
Mazariegos, 428 F.3d at 35–36 (presumption from past persecution from Guatemalan guerillas
rebutted because guerillas that persecuted petitioner were assimilated into the government and so
did not need to engage in militant activities, and no such activities occurred); Mullai v. Ashcroft,
385 F.3d 635, 639 (6th Cir. 2004) (presumption from past persecution from Communist and
Democratic Party governments rebutted because Socialist Party was in power); Yatskin v. INS.,
255 F.3d 5, 10 (1st Cir. 2001) (presumption from past persecution by Communist government
rebutted with the dismantling of the Soviet Union); Woldemeskel v. INS., 257 F.3d 1185, 1188,
1190 (10th Cir. 2001) (presumption from past persecution by former government rebutted with
change in government that had persecuted petitioner and concomitant change in country
conditions).
7
See, e.g., Sowe v. Mukasey, 538 F.3d 1281, 1286 (9th Cir. 2008) (presumption from past
persecution by members of the Revolutionary United Front (“RUF”) rebutted where members of
RUF had been tried before a war crimes tribunal and where the government was taking action
against the group); Bollanos v. Gonzales, 461 F.3d 82, 86 (1st Cir. 2006) (presumption from past
persecution based on political efforts to advance the rights of ethnic minorities rebutted where
two State Department reports stated that that politically-motivated violence “decreased
11
Fundamental change is certainly not limited to the above examples, nor do such
situations always reflect fundamental change; instead, it is a fact-specific inquiry
that must be tailored to the petitioner’s situation, and must be sufficient to
demonstrate, in the withholding of removal context, that a petitioner’s life or
freedom would not be threatened if he or she was returned to his or her country of
origin.
To support its finding that there has been a fundamental change in country
conditions in Indonesia, the BIA relied solely on the 2006 Country Report, stating
that although it “identifies a few sporadic incidents of tension between religious
groups, [it] also indicates that there have been improvements in the relations
between religious groups.” A.R. 4. The opinion asserts that the incidents of
conflict in the Report do not rise to the level of persecution. Furthermore, the BIA
found that “although there is ongoing discrimination against Indonesians of
Chinese ethnicity, ‘[i]nstances of discrimination and harassment of ethnic Chinese
continued to decline compared with previous years.’” Id. (alteration in original)
(quoting 2006 Country Report). Consequently, the BIA held that “there has been a
significantly,” elections were conducted under a new electoral code that addressed many of the
problems from previous elections, elections were generally free of violence with no police
interference, the candidate representing the Greek minority (petitioner’s cousin) won elections in
his hometown, and Greeks participated actively in politics); Kharkhan v. Ashcroft, 336 F.3d 601,
603, 605 (7th Cir. 2003) (presumption from past persecution because petitioner was not allowed
to go to church was rebutted because Ukraine has since permitted Catholic churches to operate in
the country, and its constitution was amended to guarantee religious freedom to all).
12
fundamental change in circumstances such that the respondent has not established
that she is more likely than not to face persecution in Indonesia.” Id.According to the Report, acts of violence and discrimination against
Christians has lessened from previous years, with support from the government, in
the provinces of Central Sulawesi and Maluku. The Report relates that
“[r]eligiously motivated violence . . . in Central Sulawesi, Maluku, and North
Maluku occurred less frequently than in previous years,” that “[r]eligious and
ethnic conflict in Central Sulawesi abated somewhat during the year,” and that
“Maluku Province saw greatly reduced ethnic and religious tensions during the
year,” with cooperation among religious leaders. A.R. 116, 117, 128–29. The
Report notes that the “[g]overnment and police continued to make some progress
in handling conflicts in Central Sulawesi and Maluku” by capturing suspects in
certain attacks on Christians, and that non-governmental organizations (“NGOs”)
aided in encouraging cooperation between religious groups.8 Id. at 116, 127. The
Report records a decline in murders in Central Sulawesi from thirty-seven in 2005
to eight, and a decline in injuries from 104 to three, due in part to increased police
presence in the province. Id. at 116. Finally, the government passed a law in
response to attacks on unregistered houses of worship, allowing a permit for a
8
The Report also notes that overall, “police professionalism remained low, as did their respect
for human rights and effectiveness at investigating human rights abuses.” A.R. 120.
13
house of worship to be issued if it is petitioned in a signed statement by at least
ninety congregation members and sixty other community members. Id. at 127.
However, some criticized the new law for still requiring consent by community
members and for the high number of congregation members required to sign the
petition. Id.
Besides this law, the Report does not mention changes for Christians in any
other parts of Indonesia, such as where Imelda had lived, or even the country
generally.9 When it does mention Indonesia generally, the Report explains that
among the “human rights problems occurr[ing] during the year” was “interference
with freedom of religion by private parties, sometimes with complicity of local
officials” and “intercommunal religious violence.” Id. at 114. Furthermore, the
Indonesian government passed a law reaffirming the longstanding requirement that
the National Identity Card (“KTP”), which all citizens must carry, identify the
holder’s religion. According to some NGOs, this requirement “endangered
cardholders who traveled through areas of interreligious conflict.” Id. at 123. The
government also “took no concrete steps to implement controversial provisions” of
9
The Report does state that in March 2006, in South Sulawesi, 100 members of the militant
Islamic group Laskar Jundullah ransacked the office of two foreign university lecturers and long-
time residents because they translated the Bible into the local dialect. The local police dispersed
the crowd after allowing them to search the office. A.R. 127. In September 2005, a court in
West Java sentenced three women to three years in prison for proselytizing because they
included Muslim children (with parental permission) in Christian Sunday school activities. Id.
In Madura, a non-Indonesian and a citizen were arrested for corrupting the Muslim community.
Id.
14
an education law that would require religious instruction to students in their own
faith. Id. at 127.
Moreover, although the Report illustrates that tensions may have “abated
somewhat” or “occurred less frequently” in the Central Sulawesi and Maluku
Provinces, it also makes clear that acts of violence directed at Christians still
occurred in those areas. For instance, the Report explained that “Central Sulawesi
continued to experience sporadic bombings, shootings, and other violence.” Id. at
129. This included a bomb detonated in an empty church in Poso and the killing of
a reverend in Central Sulawesi. Id. at 116, 129. A Christian woman was stabbed
and killed while riding public transportation through a predominantly Muslim area
of Poso City. Id. at 116. In 2005, a bus attack by Muslim residents killed four and
injured fourteen Christian passengers in the Ambon district, and three Christian
schoolgirls were beheaded in Central Sulawesi. Id. at 116, 117. In 2004, two
churches were bombed, two Christian priests were murdered, and a Pentecostal
minister was abducted in Maluku Province. Id. at 118.
After examining the record, we are compelled to conclude that the
government has not met its burden of demonstrating a fundamental change in
country conditions such that Imelda’s life or freedom would not be threatened
upon removal to Indonesia based on her religion. The BIA did not engage in a
sufficient, individualized analysis. While it discussed the treatment of Christians
15
and Chinese in Indonesia, which is tailored to Imelda’s claims of persecution, the
2006 Country Report only records improvements in the provinces of Central
Sulawesi and Maluku. It makes no mention of Imelda’s home province, the
Minahasa District of North Sulawesi, where her past incidents of persecution
occurred, nor does it discuss improvements for Christians generally in Indonesia.
Furthermore, while there is an indication of improvement in those provinces,
the Report makes clear that religious violence still occurs. See, e.g., Chand, 222
F.3d at 1079 (“It is not surprising that while racial or religious conditions may have
improved generally, a number of individuals may continue to be subjected to acts
of persecution on a regular basis. It may be true that in some regions of the country
conditions are better than in others, or even that there are some villages in which
persecution reigns and others in which it is entirely absent.”); Ali v. Ashcroft, 394
F.3d 780, 789 (9th Cir. 2005) (“We have repeatedly found that the DHS has not
rebutted the presumption of a well-founded fear of persecution when evidence in
country reports indicates that persecution similar to that experienced by the
petitioner still exists.”); Awale v. Ashcroft, 384 F.3d 527, 531 (8th Cir. 2004)
(noting that while general conditions may have improved in Somalia, inhabitants
of the specific area in which petitioner had lived still experienced persecution).
While we do not require unrealistic specificity from the government in
establishing changed conditions, it is insufficient to point to two regions in a
16
country—regions in which the petitioner did not live—and conclude that
fundamental changes have occurred because there were some improvements in
those regions.
In its analysis for fundamental changes in circumstances for ethnic Chinese
in Indonesia, the BIA also relied on the 2006 Country Report. The Report states
that “[i]nstances of discrimination and harassment of ethnic Chinese continued to
decline compared with previous years,” and that “[r]ecent reforms increased
religious and cultural freedoms.” Id. at 138.10 The statement that harassment
against Chinese has “continued to decline” from previous years does not indicate
the extent to which it has declined, and the government failed to proffer any
evidence in the record of other State Department reports that could have tracked
this decline. The Report also does not make any mention of the treatment of ethnic
Chinese who are also Christians.11
Given our consideration of the evidence, we are compelled to find that the
10
The reforms were the revocation of a previous presidential decree requiring special permits to
engage in Chinese cultural and religious celebrations, and a new citizenship law which states that
an Indonesian citizenship certificate, which had been difficult for ethnic Chinese to obtain, was
no longer required. A.R. 138. However, the Report also notes that public servants still
discriminated against some ethnic Chinese in issuing marriage licenses and other services. The
Report found fifty articles of law, regulations, or decrees that discriminated against Chinese
citizens. Id. Furthermore, the Report recounted two incidents of threats and violent protests in
2006 against ethnic Chinese based on suspected involvement of two ethnic Chinese in crimes
against their employees. Id.
11
In her testimony, Imelda mentioned that those who harassed her in 1988 did not like
Christians, especially those who are Chinese. She also stated that the police would not have
helped her with the 1995 incident because she was Christian and Chinese.
17
government failed to meet its burden of proof to show, by a preponderance of the
evidence, that there has been a fundamental change in circumstances in Indonesia
such that Imelda no longer faced a threat to her life or freedom based on her
religion and race. Although the improvements in Indonesia are important,
substantial evidence does not support the conclusion that the improvements
discussed in the 2006 Country Report rebutted the presumption of a future threat to
Imelda’s life or freedom. We note that the 2006 Country Report was the most
recent evidence and the only State Department report in the record. It is possible
that more evidence, such as prior State Department reports, would demonstrate
changed conditions in Indonesia, but we determine this case on the record before
us.
C. Relocation
Neither the BIA nor the IJ considered whether Imelda “could avoid a future
threat to [her] life or freedom by relocating to another part of [Indonesia] and,
under all the circumstances, it would be reasonable to expect [her] to do so.” 8
C.F.R. § 208.16(b)(1)(i)(B). Therefore, we remand for consideration of this issue.
IV. CONCLUSION
Based on the foregoing, we GRANT the petition, VACATE the decision of
the BIA, and REMAND to the BIA for further proceedings consistent with this
opinion.
18
TJOFLAT, Circuit Judge, specially concurring:
Given the confusion the Board of Immigrant Appeals (“BIA”) demonstrated
in stating the standard under which it reviewed the immigration judge’s (“IJ”)
decision denying Imelda’s application for relief under the Immigration and
Nationality Act (“INA”),1 I write separately to reiterate the straightforward
standard that the BIA should apply on remand. If the BIA decides that Imelda
suffered past persecution, or assumes that she did, the BIA must inquire whether
the Government has shown by a preponderance of the evidence that “[t]here has
been a fundamental change in circumstances such that [Imelda’s] life or freedom
would not be threatened on account of” her Chinese ethnicity or Christian religion
or that she “could avoid a future threat to . . . her life or freedom by relocating to
another part of [Indonesia] and, under all the circumstances, it would be reasonable
to expect [Imelda] to do so.” See 8 C.F.R. § 208.16(b)(1)(i). If the BIA, however,
agrees with the IJ’s finding that Imelda did not suffer past persecution, the inquiry
would be whether Imelda met her “burden of establishing that it is more likely than
not” that her life or freedom would be threatened on the basis of her ethnicity or
1
The BIA began its discussion by assuming past persecution. There are two problems with the
BIA’s statement of the law. First, in reviewing Imelda’s application for withholding of removal,
it stated that there has been “a fundamental change in circumstances such that [Imelda] no longer
has a well-founded fear of persecution in Indonesia,” which, as the court notes, is the standard
for granting an asylum application, not withholding of removal. (Emphasis added). Second, in
concluding, it states that Imelda therefore has “not established that she is more likely than not to
face persecution.” The court claims that this is the standard for withholding of removal. As I
clarify in the text, however, that is not the correct standard if the BIA assumes past persecution.
19
religion. Id. § 208.16(b)(1)(iii).
I agree that on the current appeal the BIA’s decision must be vacated; I
would make clear that this decision should be reached on the narrow ground that
the State Department’s 2006 Country Report on Indonesia—the sole evidence
relied upon by the BIA—does not at all address the situation of Chinese or
Christian persons in Imelda’s province of North Sulawesi.2 Therefore, if the BIA
finds on remand that Imelda suffered past persecution (or assumes that she did), the
2006 Country Report by itself would be insufficient for the Government to meet its
burden of showing a fundamental change in circumstances.
2
There are 33 provinces in Indonesia, each with its own local government. As the court notes,
the 2006 Country Report describes Central Sulawesi and Maluku as areas where tensions have
eased. Central Sulawesi and Maluku are provinces distinct from North Sulawesi; neither shares
a border with North Sulawesi.
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