Cipto Chandra v. Eric Holder, Jr. , 751 F.3d 1034 ( 2014 )


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  •                      FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    CIPTO CHANDRA,                                    No. 10-70029
    Petitioner,
    Agency No.
    v.                          A079-522-209
    ERIC H. HOLDER, JR., Attorney
    General,                                            OPINION
    Respondent.
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Argued and Submitted
    February 13, 2014—Pasadena, California
    Filed May 12, 2014
    Before: Richard A. Paez and Jacqueline H. Nguyen,
    Circuit Judges, and J. Frederick Motz, Senior District
    Judge.*
    Opinion by Judge Paez
    *
    The Honorable J. Frederick Motz, Senior District Judge for the U.S.
    District Court for the District of Maryland, sitting by designation.
    2                      CHANDRA V. HOLDER
    SUMMARY**
    Immigration
    The panel granted a petition for review of the Board of
    Immigration Appeals’ denial of an untimely motion to
    reopen.
    The panel held that a petitioner’s untimely motion to
    reopen may qualify under the changed conditions exception
    in 8 C.F.R. § 1003(c)(3)(ii), even if the changed country
    conditions are made relevant by a change in the petitioner’s
    personal circumstances. The panel held that the Board
    therefore erred insofar as it determined that petitioner’s post-
    removal conversion to Christianity rendered him ineligible to
    file an untimely motion under the changed conditions
    exception.
    The panel remanded for further proceedings after
    concluding that the Board abused its discretion when it failed
    to assess petitioner’s evidence that treatment of Christians in
    Indonesia had deteriorated since his 2002 removal hearing.
    COUNSEL
    Gihan L. Thomas (argued), Law Offices of Gihan Thomas,
    Los Angeles, California, for Petitioner.
    **
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    CHANDRA V. HOLDER                        3
    D. Nicholas Harling (argued); Nairi S. Gruzenski, Trial
    Attorney; Cindy S. Ferrier, Senior Litigation Counsel; Tony
    West, Assistant Attorney General, Civil Division, United
    States Department of Justice, Washington, D.C. for
    Respondent.
    OPINION
    PAEZ, Circuit Judge:
    Petitioner Cipto Chandra (“Chandra”) petitions for review
    of the Board of Immigration Appeals’ (“BIA”) denial of his
    motion to reopen removal proceedings. After Chandra’s
    order of removal became final in 2005, he converted to
    Christianity. On March 9, 2009, Chandra filed an untimely
    motion to reopen on the basis that religious persecution
    against Christians in Indonesia had worsened since his
    previous hearing. Because the BIA failed to consider
    Chandra’s evidence of changed conditions in Indonesia in
    light of his conversion to Christianity, we grant the petition
    and remand for further proceedings.
    I.
    Chandra, an Indonesian citizen of Chinese descent,
    entered the United States in 1998 and overstayed his visa. In
    2001, after the Department of Homeland Security initiated
    removal proceedings, Chandra conceded removability and
    filed an application for asylum, withholding of removal, and
    protection under the United Nations Convention Against
    Torture (“CAT”) on the ground that he faced persecution in
    Indonesia because of his Chinese ethnicity. In January 2002,
    the Immigration Judge (“IJ”) denied Chandra’s application
    4                   CHANDRA V. HOLDER
    for asylum as untimely, and his application for withholding
    of removal and CAT protection because he failed to carry his
    burden for either form of relief. The IJ granted Chandra’s
    application for voluntary departure. In October 2003, the
    BIA dismissed his appeal. We denied Chandra’s petition for
    review in February 2005. Chandra v. Gonzales, 123 F.
    App’x 792 (9th Cir. 2005).
    Chandra did not leave the country after his order of
    removal became final. While remaining in the country, he
    converted to Christianity and began to attend church on a
    regular basis. Chandra filed a motion to reopen based on
    “changed circumstances in Indonesia.” His motion referred
    to “escalated and widespread persecution of Christians by
    Islamic fundamentalists [and the] Indonesian military, with
    the tacit cooperation of the Indonesian government.” For
    support, Chandra submitted the 2007 International Religious
    Freedom Report, prepared by the United States Department
    of State (“State Department”), news articles from 2008
    reporting on violence perpetrated by Muslims against
    Christian religious leaders and followers in Indonesia, a 2009
    travel warning issued by the State Department cautioning
    “Americans or other Western citizens and interests” about
    general terrorist threats in Indonesia, and other materials.
    Chandra also presented a letter from Tara Ongkowidjojo, the
    Church Administrator at City Blessing Church in Temple
    City, California, stating that Chandra “has been regularly
    attending [] church . . . and attends the Care Cell Fellowship
    meeting every week.”
    In December 2009, the BIA denied Chandra’s motion. In
    a brief order, the BIA cited to 8 C.F.R. § 1003.2(c)(iii)(2) and
    explained that “[c]hanges in the respondent’s personal
    circumstances in the United States do not constitute
    CHANDRA V. HOLDER                         5
    sufficiently changed circumstances so as to allow for the
    untimely reopening of these proceedings.”
    Chandra filed a timely petition for review of the BIA’s
    decision. We have jurisdiction pursuant to 8 U.S.C. § 1252.
    II.
    The Supreme Court has recognized that “[t]he motion to
    reopen is an important safeguard intended to ensure a proper
    and lawful disposition of immigration proceedings.” Kucana
    v. Holder, 
    558 U.S. 233
    , 242 (2010) (internal quotation marks
    and citations omitted). Motions to reopen, however, are
    generally disfavored because “every delay works to the
    advantage of the deportable alien who wishes merely to
    remain in the United States.” I.N.S. v. Doherty, 
    502 U.S. 314
    ,
    323 (1992). Thus, “[t]here is a strong public interest in
    bringing litigation to a close as promptly as is consistent with
    the interest in giving the adversaries a fair opportunity to
    develop and present their respective cases.” I.N.S. v. Abudu,
    
    485 U.S. 94
    , 107 (1988). “Mindful of the [BIA’s] broad
    discretion” in deciding whether to grant a motion to reopen,
    “courts have employed a deferential, abuse-of-discretion
    standard of review.” 
    Kucana, 558 U.S. at 242
    (internal
    quotation marks and citations omitted). The BIA abuses its
    discretion when its denial of a motion to reopen is “arbitrary,
    irrational or contrary to law.” Azanor v. Ashcroft, 
    364 F.3d 1013
    , 1018 (9th Cir. 2004) (internal quotation marks and
    citations omitted). We review de novo the BIA’s conclusions
    on purely legal issues. Mejia v. Ashcroft, 
    298 F.3d 873
    , 876
    (9th Cir. 2002).
    6                      CHANDRA V. HOLDER
    III.
    Generally, a petitioner may file only one motion to reopen
    removal proceedings, and must do so within ninety days of
    the “final administrative decision.” 8 C.F.R. § 1003.2(c)(2);
    8 U.S.C. § 1229a(c)(7)(C)(i). There is no dispute that
    Chandra failed to meet the ninety-day deadline. He contends,
    however, that his motion and supporting evidence fall within
    an exception “based on changed circumstances arising in the
    country of nationality . . . if such evidence is material and was
    not available and could not have been discovered or presented
    at the previous hearing.”1 8 C.F.R. § 1003.2(c)(3)(ii)
    (“changed conditions exception”). Chandra argues that the
    BIA abused its discretion when it denied his motion because
    there is “material evidence of escalated and widespread
    persecution of Christians in . . . Indonesia.” The Government
    argues that the BIA properly denied his motion because the
    “alleged changes in country conditions are irrelevant unless
    considered in the context of [Chandra’s] change in personal
    circumstances, i.e. his conversion to Christianity.”
    The plain language of 8 C.F.R. § 1003.2(c)(3)(ii) does not
    preclude an untimely motion where a change in the
    petitioner’s personal circumstances is a necessary predicate
    to the success of the motion. The regulation establishes three
    evidentiary requirements: (1) “changed circumstances arising
    in the country of nationality or deportation”; (2) evidence that
    is “material”; and (3) evidence that was not “available” and
    could not have been “discovered or presented” at the time of
    1
    The text of 8 C.F.R. § 1003.2(c)(3)(ii) states that the changed
    conditions exception applies to applications for asylum and withholding
    of removal. In Go v. Holder, 
    744 F.3d 604
    , 607 (9th Cir. 2014), we held
    that 8 C.F.R. § 1003.2(c) applies to applications for CAT relief, as well.
    CHANDRA V. HOLDER                                 7
    the previous hearing. 
    Id. Although the
    first requirement
    would prohibit a motion to reopen that relies solely on a
    change in personal circumstances, it does not prohibit a
    motion to reopen based on evidence of changed country
    conditions that are relevant in light of the petitioner’s
    changed circumstances. In other words, if there is sufficient
    evidence of changed conditions in the receiving country,
    there is nothing in the plain language of the regulation that
    prevents a petitioner from referring to his personal
    circumstances to establish the materiality of that evidence.
    The cases the Government cites for support are
    distinguishable because they address motions to reopen that
    rely solely on changes in personal circumstances and thus fail
    to satisfy the first evidentiary requirement. See Najmabadi v.
    Holder, 
    597 F.3d 983
    , 991 (9th Cir. 2010) (recognizing that
    the petitioner’s desire to become politically active in her
    native country was insufficient to demonstrate changed
    country conditions there); Lopez-Almaraz v. Holder, 
    608 F.3d 638
    , 640 (9th Cir. 2010) (holding that the petitioner’s HIV
    diagnosis was “a change in his personal circumstances . . . not
    a change in circumstances arising in [Guatemala]” (internal
    quotation marks and citations omitted)); He v. Gonzales,
    
    501 F.3d 1128
    , 1132 (9th Cir. 2007) (holding that the
    petitioners’ birth of their third child was a change in personal
    circumstances, not a change in country conditions). These
    cases do not resolve the dispute at hand.2
    2
    Notably, we signaled in He that motions to reopen on the basis of the
    changed conditions exception may be viable when there has been an
    underlying change in personal 
    circumstances. 501 F.3d at 1132
    . After
    stating that a change in personal circumstances “alone is insufficient,” we
    concluded that “absent additional evidence of changed circumstances in
    China following the BIA’s issuance of the Hes’ final order of removal, we
    must deny the petition for review.” 
    Id. We cited
    to Chen v. Gonzales,
    8                      CHANDRA V. HOLDER
    Although this is a matter of first impression for our
    circuit, the Sixth, Seventh, and Eleventh Circuits have each
    determined that the BIA must consider changed country
    conditions as they relate to a petitioner’s change in personal
    circumstances. In Shu Han Liu v. Holder, 
    718 F.3d 706
    , 707
    (7th Cir. 2013), the Chinese petitioner originally applied for
    asylum on the basis that, if removed, she would be persecuted
    because she had refused to marry a Communist Party official
    before leaving the country. In 2004, her application was
    denied and she was ordered removed. 
    Id. She defied
    the
    removal order, however, and in 2011 filed a motion to reopen
    her removal proceedings on the basis that she had converted
    to Christianity and would face persecution in China for her
    newfound religious beliefs. 
    Id. The Seventh
    Circuit held
    that, “if her conversion was sincere, [there was no] basis . . .
    for treating her differently from someone who had converted
    to Christianity before coming to the United States[.]” 
    Id. at 709;
    see also En Gao v. Holder, 
    721 F.3d 893
    , 895 (7th Cir.
    2013) (holding that a genuine conversion to Christianity,
    accompanied by an appreciable deterioration of treatment
    towards Christians in China, could form the basis of an
    untimely motion to reopen). After reviewing the new
    evidence, the court determined that because the petitioner’s
    conversion to Christianity placed her at a greater risk at the
    time of her motion to reopen than she would have faced—had
    she been a Christian—at the time of her removal hearing in
    
    490 F.3d 180
    , 184 (2d Cir. 2007), and noted that Chen “le[ft] open the
    possibility that a petitioner whose changed personal conditions (which
    result in his falling into a category of individuals threatened by changed
    country conditions) might be able to rely on those changed country
    conditions in an untimely motion to reopen where the underlying change
    in personal circumstances postdated his order to depart.” 
    He, 501 F.3d at 1132
    (internal quotation marks, citations, and alterations omitted).
    CHANDRA V. HOLDER                        9
    2002, the BIA erred in denying her motion to reopen. Shu
    Han 
    Liu, 718 F.3d at 710
    –13.
    The Sixth Circuit has also recognized that a change in
    personal circumstances, when accompanied by a change in
    country conditions, may warrant a grant of a motion to reopen
    removal proceedings. Yu Yun Zhang v. Holder, 
    702 F.3d 878
    ,
    879–80 (6th Cir. 2012). In Yu Yun Zhang, the BIA denied the
    petitioner’s motion to reopen, filed in 2011, even though it
    acknowledged that the petitioner had successfully
    demonstrated that the Chinese government had intensified its
    repression of Christians since 2002, when the petitioner was
    first ordered removed. 
    Id. at 880.
    The Sixth Circuit held that
    the petitioner’s personal conversion to Catholicism after her
    removal order did not “foreclose the possibility” that a
    change in country conditions could warrant reopening of
    proceedings. 
    Id. The court
    distinguished the scenario where
    there is “separate but simultaneous changes” in personal
    circumstances and country conditions from a scenario where
    there is a “purely personal change in circumstances.” 
    Id. Finally, the
    Eleventh Circuit has held that, when a
    petitioner files a motion to reopen on the basis of changed
    country conditions, the petitioner’s post-removal change in
    personal circumstances will not bar the motion. Jiang v. U.S.
    Att’y Gen., 
    568 F.3d 1252
    , 1258 (11th Cir. 2009). In Jiang,
    the petitioner, a Chinese citizen, was ordered removed in
    absentia in 1999. 
    Id. at 1254.
    However, she remained in the
    country and had two children. 
    Id. In 2007,
    she filed a motion
    to reopen on the basis that, if removed, she would be
    persecuted for violating China’s one-child policy. 
    Id. She supported
    her motion with evidence that forced sterilizations
    in her home province and home town were on the rise. 
    Id. at 1255.
    The BIA denied the motion because it was “principally
    10                      CHANDRA V. HOLDER
    based on her decision to remain in the United States and give
    birth to several children[,] which constitutes changed personal
    circumstances, not changed circumstances arising in the
    country of nationality.” 
    Id. at 1258
    (internal quotation marks,
    citations, and alterations omitted). The Eleventh Circuit
    reversed. 
    Id. Explaining that
    “the BIA badly misconceived
    Jiang’s petition,” the court held that the increased
    enforcement of the one-child policy in her home province and
    home town formed an adequate basis for her motion to
    reopen. 
    Id. We join
    our sister circuits and hold that a petitioner’s
    untimely motion to reopen may qualify under the changed
    conditions exception in 8 C.F.R. § 1003(c)(3)(ii), even if the
    changed country conditions are made relevant by a change in
    the petitioner’s personal circumstances.3 The regulation
    required that Chandra put forward material and previously
    unavailable evidence that the treatment of Christians had
    worsened between his previous hearing in 2002 and the filing
    of his motion to reopen. See 8 C.F.R. § 1003.2(c)(3)(ii);
    3
    Additionally, the First Circuit’s analysis in Ming Chen v. Holder,
    
    722 F.3d 63
    (1st Cir. 2013), suggests that a petitioner can prevail on a
    motion to reopen on the basis of changed country conditions made
    relevant by a change in personal circumstances. The First Circuit
    distinguished between the petitioner’s “personal decision” to join the
    Chinese Democracy Party (“CDP”), which was a mere change in personal
    circumstances that did not warrant reopening, and evidence that treatment
    of CDP members had worsened materially in China over the relevant
    period, which would warrant reopening under the changed conditions
    exception. 
    Id. at 66–68.
    Although the court found that the evidence did
    not support the petitioner’s motion, the import of the analysis was that the
    petitioner could have established a basis for reopening under the exception
    if he had shown both that he joined the CDP and that the Chinese
    government had increased its persecution of CDP members over the
    applicable time period.
    CHANDRA V. HOLDER                         11
    Malty v. Ashcroft, 
    381 F.3d 942
    , 946 (9th Cir. 2004). The
    BIA denied Chandra’s motion without considering a
    substantial amount of evidence purporting to establish that
    persecution of Christians in Indonesia had worsened. “While
    the [BIA] has broad discretion in ruling on a motion to
    reopen, it must show proper consideration of all factors . . . in
    determining whether to grant a motion to reopen.” Toufighi
    v. Mukasey, 
    538 F.3d 988
    , 993 (9th Cir. 2008). The BIA
    abused its discretion when it failed to assess Chandra’s
    evidence that treatment of Christians in Indonesia had
    deteriorated since his 2002 removal hearing. See 
    Mejia, 298 F.3d at 879
    (holding that the BIA abused its discretion
    when it completely failed to consider the petitioner’s
    argument for reopening proceedings). Further, the BIA
    committed legal error insofar as it determined that Chandra’s
    post-removal conversion to Christianity rendered him
    ineligible to file an untimely motion under the changed
    conditions exception.
    The Government urges that we take heed of the “policy
    interest . . . in preventing applicants from orchestrating
    changes that serve their self-interest.” See Larngar v. Holder,
    
    562 F.3d 71
    , 77–78 (1st Cir. 2009). We realize that, as with
    any form of relief available to immigrants and refugees
    seeking to make their life in this country, there is some risk
    of abuse. Our decision today serves another worthy policy
    interest. Indeed, it is one of our oldest and most foundational
    policy interests—allowing individuals to freely choose and
    exercise their own religion. The timing of one’s religious
    choice is not determinative of one’s rights. “Congress has
    recognized and denounced acts of religious persecution,” and
    it is the “policy of the United States to stand with the
    persecuted.” Negusie v. Holder, 
    555 U.S. 511
    , 553 (2009)
    (citing 22 U.S.C. §§ 6401(a)(5)–(7), (b)(5)). If an
    12                 CHANDRA V. HOLDER
    individual’s religion places him at risk of persecution, then
    this country provides a refuge.
    IV.
    For the reasons stated above, we grant Chandra’s petition
    and remand to the BIA for further proceedings.
    PETITION GRANTED AND REMANDED.