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

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.