Sihotang v. Sessions ( 2018 )

United States Court of Appeals
For the First Circuit
No. 17-2183
INDRA SIHOTANG,
Petitioner,
v.
JEFFERSON B. SESSIONS, III,
ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Thompson, Selya, and Kayatta,
Circuit Judges.
Jesse H. Thompson, with whom Andrea C. Kramer, Julie A.
Frohlich, and Kramer Frohlich LLC were on brief, for petitioner.
Abigail E. Leach, Trial Attorney, Office of Immigration
Litigation, U.S. Dept. of Justice, with whom Chad A. Readler,
Acting Assistant Attorney General, Civil Division, Anthony C.
Payne, Assistant Director, Office of Immigration Litigation, and
Janette L. Allen, Senior Litigation Counsel, Office of Immigration
Litigation, were on brief, for respondent.
August 15, 2018
SELYA, Circuit Judge. Motions to reopen — especially
untimely motions to reopen — are disfavored in immigration cases.
Consequently, an alien who seeks to reopen removal proceedings out
of time ordinarily faces a steep uphill climb. This does not mean,
though, that the mountaintop is entirely beyond reach. The case
at hand — in which the Board of Immigration Appeals (BIA)
overlooked a significant factor relevant to the decisional
calculus — illustrates the point. After careful consideration of
a tangled record, we grant the petition for judicial review, vacate
the BIA's denial of the motion to reopen, and remand for further
proceedings consistent with this opinion.
The petitioner, Indra Sihotang, is an Indonesian
national and an evangelical Christian. In his homeland,
approximately eighty-seven percent of the population is Muslim.
The petitioner, then 36 years of age, entered the United
States on a bogus crewmember's visa in 2003 and overstayed. On
March 26, 2004, federal authorities instituted removal proceedings
against him pursuant to 8 U.S.C. § 1227(a)(1)(A). After conceding
removability, the petitioner cross-applied for asylum, withholding
of removal, and protection under the United Nations Convention
Against Torture (another form of withholding of removal).
During his November 2006 removal hearing before an
immigration judge (IJ), the petitioner testified that he had
experienced persecution in Indonesia on account of his faith. He
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described three sets of incidents, which he attributed to his
religious identity:
 In 1992, the petitioner and his brother were
assaulted while riding on a motor bike in Jakarta.
They sustained serious injuries and received
medical attention at a nearby hospital. The
petitioner ascribed this assault to the Christian
cross emblazoned on the T-shirt he was wearing.
 In 2002, Muslim extremists committed a series of
high-profile attacks on Indonesian churches.
 Later that year, a group of Muslim extremists,
using a megaphone, succeeded in disbanding a
religious prayer meeting hosted by the petitioner
at his home in Jakarta.
Despite the petitioner's testimony and his documentary
submissions, the IJ denied the petitioner's application for
relief, but granted him a two-month voluntary departure window
"for humanitarian reasons." The BIA dismissed the petitioner's
appeal on May 14, 2008. The petitioner did not seek judicial
review of that dismissal.
Notwithstanding the expiration of the voluntary
departure period, federal authorities allowed the petitioner to
remain in the United States under an order of supervision for
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almost ten years.1 During that interval, the petitioner married
an Indonesian Christian with ethnic Chinese heritage (an ethnicity
strongly associated with Christianity in Indonesia). They have
four American-born children, one of whom has Down syndrome. The
petitioner abided by the terms of his supervision, worked
regularly, and was the family's sole source of income. In
addition, he provided his disabled son with daily physical therapy.
The world turned upside-down for the petitioner and his
family on September 7, 2017. At that time, the petitioner went to
an ICE field office in New York for the purpose of renewing his
supervision paperwork (as he had done on several prior occasions).
This time, he was taken into custody by ICE officers.
On October 12, 2017 — while still in custody — the
petitioner moved to reopen his removal proceedings. See 8 C.F.R.
§ 1003.2(c). Because the petitioner's motion was not filed within
90 days of the final administrative decision in the initial removal
proceeding, the BIA deemed the motion time-barred. See id.§ 1003.2(c)(2). Seeking to avoid this temporal barrier, the
petitioner averred that country conditions in Indonesia had
1 This order of supervision arose out of Operation Indonesian
Surrender, a humanitarian program initiated by Immigration and
Customs Enforcement (ICE). Under the program, 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. See
Devitri v. Cronen, 289 F. Supp. 3d 287, 290 (D. Mass. 2018).
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changed materially since the time of his merits hearing. See id.§ 1003.2(c)(3)(ii). In support, he submitted new evidence in the
form of published news articles and country conditions reports.
He also submitted a detailed 66-page affidavit signed by Dr.
Jeffrey A. Winters, an academician specializing in Indonesian
political economy, labor, and human rights.
The BIA gave the petitioner short shrift. In a terse
one-and-a-half page opinion, the BIA framed the petitioner's claim
as one of "changed country conditions affecting Indonesian
Christians, particularly in the increasing influence of extreme
Islamic groups." It proceeded to deny the petitioner's motion to
reopen, concluding that conditions in Indonesia had not
"materially changed since [the 2006 merits] hearing." In the BIA's
estimation, the petitioner had managed to show only "a continuation
of previously existing conditions." Although the BIA concluded
that "Christians in Indonesia may face societal abuses or
discrimination, and . . . there have been incidents of harm against
Christians and their places of worship," it nonetheless noted that,
"millions of Christians continue to live in Indonesia without
experiencing harm." This timely petition for judicial review
ensued. We issued a temporary stay of removal on December 1, 2017,
and supplanted that temporary stay with a more durable stay order
on February 14, 2018.
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Our standard of review is familiar. Motions to reopen
removal proceedings are disfavored because they impinge upon "the
compelling public interests in finality and the expeditious
processing of proceedings." Bbale v. Lynch, 840 F.3d 63, 66 (1st
Cir. 2016) (quoting Roberts v. Gonzales, 422 F.3d 33, 35 (1st Cir.
2005)). We afford the BIA "wide latitude in deciding whether to
grant or deny such a motion," id., and judicial review is for abuse
of discretion, see Sánchez-Romero v. Sessions, 865 F.3d 43, 46
(1st Cir. 2017). To cross this threshold, the petitioner must
show that the BIA either "committed an error of law or exercised
its judgment in an arbitrary, capricious, or irrational manner."
Bbale, 840 F.3d at 66.
Whether an abuse of discretion occurs necessarily hinges
on the facts and circumstances of each particular case. To guide
this inquiry, we have explained that the BIA may abuse its
discretion "by neglecting to consider a significant factor that
appropriately bears on the discretionary decision, by attaching
weight to a factor that does not appropriately bear on the
decision, or by assaying all the proper factors and no improper
ones, but nonetheless making a clear judgmental error in weighing
them." Murillo-Robles v. Lynch, 839 F.3d 88, 91 (1st Cir. 2016)
(quoting Henry v. INS, 74 F.3d 1, 4 (1st Cir. 1996)).
With the standard of review in place, we return to the
case at hand. To succeed on his motion to reopen, the petitioner
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had to satisfy two substantive requirements. First, he had to
"introduce new, material evidence that was not available at the
original merits hearing." Perez v. Holder, 740 F.3d 57, 62 (1st
Cir. 2014). Second, he had to "make out 'a prima facie case of
eligibility for the relief sought.'" Id. (quoting Jutus v. Holder,
723 F.3d 105, 110 (1st Cir. 2013)).
In determining whether the petitioner satisfied the
first requirement, the BIA had to "compare[] the evidence of
country conditions submitted with the motion to those that existed
at the time of the merits hearing." Sánchez-Romero, 865 F.3d at
46 (quoting Xin Qiang Liu v. Lynch, 802 F.3d 69, 76 (1st Cir.
2015)). To prevail, the petitioner had to demonstrate that
conditions in Indonesia had "intensified or deteriorated" in some
material way between November 8, 2006 (the date of the petitioner's
merits hearing) and October 12, 2017 (the date on which the
petitioner filed his motion to reopen). Id. The BIA concluded
that the petitioner failed to satisfy this requirement: he had
shown nothing more than the persistence of negative conditions for
Indonesian Christians. That showing, the BIA opined, was
insufficient to carry the petitioner's burden of proving that his
new evidence reflected a material change in country conditions.2
2 The BIA did not analyze the second requirement. Had it done
so, it would have had to determine whether the petitioner had made
a prima facie showing of the substantive elements of the relief
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See, e.g., Sugiarto v. Holder, 761 F.3d 102, 103-04 (1st Cir.
2014); Simarmata v. Holder, 752 F.3d 79, 81 (1st Cir. 2014);
Marsadu v. Holder, 748 F.3d 55, 59 (1st Cir. 2014); Fen Tjong Lie
v. Holder, 729 F.3d 28, 30-31 (1st Cir. 2013).
We find the BIA's analysis superficial. For aught that
appears, the BIA seems to have evaluated the petitioner's motion
to reopen as if he were a prototypical Indonesian Christian. The
record, however, belies this assumption. In his motion to reopen,
the petitioner asserted — and the government did not dispute —
that the petitioner subscribes to a more particularized subset of
the Christian faith: he is an evangelical Christian, for whom
public proselytizing is a religious obligation. Yet, in terms of
the prospect of persecution arising out of changed country
conditions, the BIA wholly failed to evaluate whether and to what
extent there is a meaningful distinction between Christians who
practice their faith in private and evangelical Christians (such
as the petitioner), for whom public proselytizing is a central
tenet. So, too, the BIA neglected to consider whether country
conditions had materially changed with respect to public and
private reactions (including vigilante violence) toward
evangelical Christians. Finally, the BIA neglected to consider
ultimately sought (here, asylum or withholding of removal). See
Panoto v. Holder, 770 F.3d 43, 46 (1st Cir. 2014).
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whether attitudes in Indonesia had materially changed with respect
to persons making public religious statements.
While it remains true that the BIA need not "dissect in
minute detail every contention that a complaining party advances,"
Xiao He Chen v. Lynch, 825 F.3d 83, 88 (1st Cir. 2016) (quoting
Raza v. Gonzales, 484 F.3d 125, 128 (1st Cir. 2007)), it cannot
turn a blind eye to salient facts. The BIA must fairly appraise
the record and, in this case, it appears to have completely
overlooked critical evidence. Indeed, the BIA never even mentioned
terms remotely resembling "evangelical" or "proselytize" in its
opinion. So stark a failure to consider significant facts that
appropriately bear on the discretionary decision about whether to
grant a motion to reopen is perforce an abuse of discretion. See
Murillo-Robles, 839 F.3d at 91; Henry, 74 F.3d at 4.
Nor can we say either that these overlooked facts were
insignificant or that the BIA's error in disregarding them was
harmless. The record is replete with copious new evidence
submitted by the petitioner and unavailable in 2006, which might
well serve to ground a finding (or at least a reasonable inference)
that country conditions have steadily deteriorated over the past
twelve years. In particular, Islamic fundamentalist fervor seems
to have intensified, such that evangelical Christians may now be
at special risk in Indonesia. We offer some examples of this
evidence:
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 Media reports suggest that Indonesia has been
moving inexorably away from secular values and
toward sharia law. For instance, the national
government codified and enacted sharia principles
into criminal, economic, and moral legislation in
2008.
 That same year, Muslim extremists stormed the
Arastamar Evangelical School of Theology in the
middle of the night, wielding spears and hurling
Molotov cocktails. Eighteen students were
seriously injured.
 In 2010, Muslim extremists tried to prevent
thousands of Christians from gathering for Easter
mass; the local government responded by supporting
the extremists and instructing the worshippers to
forgo the service.
 Five months later, a pair of marauders beat and
stabbed two Christian clergymen in broad daylight.
The assailants were found guilty only of
"unpleasant conduct" and sentenced to a few months
in jail.
 In early 2011, more than 1,500 Muslim extremists
violently demanded the death sentence for a
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Christian found guilty of blasphemy. When he
received the statutory maximum prison sentence but
was allowed to live, extremists stormed the
courthouse and burned three churches to the ground.
 In 2013, the national government introduced a bill
to broaden the definition of criminal blasphemy
(which was already "implemented almost exclusively
in defense of Islam") and increase the maximum
sentence thereunder.
 In 2016, several hundred thousand Indonesians
protested vociferously after the governor of
Jakarta (a Christian) publicly encouraged
Indonesians to consider voting for non-Muslims.
The authorities lost no time in charging the
governor with violating a blasphemy law that rarely
had been invoked during the previous three decades.
The governor was convicted and sentenced to a two-
year prison term.
 Also in 2016, government officials publicly caned
a Christian. This broke new ground: it was one of
the first impositions of sharia punishment on a
non-Muslim.
 Later that year, Indonesia's highest Islamic
council modified a fatwa (religious ban) so that it
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prohibited Muslims from saying "Merry Christmas" or
wearing "non-Muslim religious attributes"
(including Santa hats and reindeer horns) in stores
and restaurants.3 Hardline vigilante groups —
sometimes accompanied by Indonesian police —
"swept" through areas where suspected violations of
this fatwa were reported.
 Dr. Winters' affidavit indicates that since 2008,
"violence and intolerance directed at religious
minorities has increased at a shocking rate," while
the "government [has remained] unwilling or unable
to take firm and decisive action to punish militant
Muslims." Among other supporting items, Dr.
Winters cites a 2017 study finding that "the
frequency of [vigilante] mob attacks actually
registered a 25 percent increase between 2007 and
2014."
 With respect to evangelical Christians, Dr. Winters
stated that they "face heightened risks because a
core part of their faith and practice is to go out
into their communities and 'spread the Gospel,'
3 Prior to 2016, this fatwa — originally issued in 1981 —
explicitly allowed Muslims to say "Merry Christmas" and only
proscribed Muslim participation in formal Christian rituals (such
as prayer and mass).
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which in Indonesia is deemed to be hostile
proselytizing that leads to [illegal] religious
conversion."
 Dr. Winters also pointed out that "[t]he Islamic
movement to impose exclusionary shari[a] law has
grown stronger and more radical" since 2008. This
fact, along with the totality of the other relevant
circumstances, led him to conclude that "[t]he
danger to [the petitioner] as an evangelical
Christian is vastly higher now than it was at the
end of 2008."
There is more. The petitioner buttressed the
evidentiary submissions accompanying his motion to reopen with
country conditions reports. We previously have noted that State
Department country conditions reports, though not conclusive, are
"generally deemed authoritative for purposes of immigration
proceedings." Pulisir v. Mukasey, 524 F.3d 302, 310 (1st Cir.
2008). In this case, the country conditions reports made pellucid
that religious intolerance was a burgeoning problem. To compound
the problem, the Indonesian government — both at the national and
local levels — has, according to the reports, increasingly "failed
to prevent violence, abuse, and discrimination against individuals
based on their religious belief[s]."
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We add, moreover, that the reports identified another
area of growing concern: the authorities "discriminated against
followers of religious groups that constituted a local minority"
through arbitrary arrests and charges for blasphemy and insulting
religion. And even though proselytizing and other attempts at
religious conversion were criminalized in Indonesia prior to 2006,
the reports noted a dramatic increase from that time forward in
persecution (both by the government and by private parties) of
Indonesians who publicly display their Christianity.
To be sure, the government tries to pigeonhole the
petitioner's case as merely another link in a chain of four cases
in which we have rejected claims by Indonesian Christians that
country conditions have materially changed. See Sugiarto, 761
F.3d at 104; Simarmata, 752 F.3d at 82; Marsadu, 748 F.3d at 61;
Fen Tjong Lie, 729 F.3d at 31. This case, though, is readily
distinguishable. None of the earlier cases involved an alien who
held himself out to be an evangelical Christian. Accordingly, the
religious beliefs of those aliens — and therefore their experiences
with religious intolerance — were different in kind, not just in
degree.
What is more, the factual inquiry in this case covers a
span (approximately eleven years) that is considerably longer than
the span considered in any of our earlier cases. We think it is
plain that the longer the time span, the more inclusive the factual
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inquiry into whether country conditions have changed. Here, this
more inclusive factual inquiry reflects a steep rise in intolerance
from start to finish.
To cinch matters, this case is of more recent vintage
than any of the cases relied on by the government. This fact is
critically important because the record details an especially
sharp increase in governmental and private persecution of
Indonesian Christians between 2014 and 2017 — a period not under
review in any of those prior cases.
The short of it is that the record reflects a ramping-
up of religious intolerance, increasing over time, in ways that a
reasonable observer might find uniquely problematic for
evangelical Christians. This evidence of steadily deteriorating
country conditions raises a troubling question as to whether a
tipping point — a point at which the changes can be said to be
materially adverse to evangelical Christians — has been reached.
The BIA should have confronted this question face up and squarely
and provided a reasoned answer to it. Specifically, it should
have considered whether, in view of the public nature of the
petitioner's evangelical faith, country conditions in Indonesia
had materially changed. Its failure to do so constituted an abuse
of discretion and undermined its denial of the motion to reopen.
We need go no further. At this juncture, it would be
premature for us to attempt to make a definitive determination
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either as to whether the petitioner has established materially
changed country conditions vis-à-vis evangelical Christians or as
to whether he has made a prima facie showing of eligibility for
the relief ultimately sought. See Bbale, 840 F.3d at 66. It
suffices for us to hold — as we do — that the BIA abused its
discretion in neglecting to consider significant facts that may
have had a bearing on the validity of the petitioner's motion to
reopen.
For the reasons elucidated above, we grant the petition
for judicial review, vacate the order of the BIA, and remand so
that the BIA may determine, upon due consideration of all the
relevant evidence, whether the petitioner has shown a material
change in country conditions and, if so, whether he has made a
prima facie showing of eligibility for the relief ultimately
sought. The stay of removal entered by this court on February 14,
2018, will remain in effect pending further order of this court.
We retain jurisdiction to the extent necessary to extend, modify,
dissolve, or ensure compliance with that stay order.
So ordered.
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