Dudi Yahya v. Jefferson B. Sessions III ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-1416
DUDI A. YAHYA,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney General of the United
States,
Respondent.
____________________
Petition for Review of an Order of the
Board of Immigration Appeals
No. A076-773-842.
____________________
SUBMITTED DECEMBER 12, 2017 — DECIDED MAY 3, 2018
____________________
Before BAUER, RIPPLE, and SYKES, Circuit Judges.
PER CURIAM. Dudi Yahya petitions for review of the denial
of his motion to reopen removal proceedings that concluded
more than fourteen years ago. The Board of Immigration Ap-
peals (“Board”) upheld the Immigration Judge’s (“IJ”) deci-
sion to deny his motion to reopen. The Board held that
Mr. Yahya did not qualify for one of the exceptions to the
2 No. 17-1416
ninety-day limitation for the filing of a motion to reopen.
Mr. Yahya now submits that the Board abused its discretion
by rejecting his evidence of changed conditions in Indonesia.
Because the Board permissibly concluded that Mr. Yahya did
not meet his evidentiary burden, we deny the petition.
I
BACKGROUND
Mr. Yahya entered the United States on a six-month tour-
ist visa in either 2000 or 2001 and overstayed. 1 According to
Mr. Yahya, in March 2003, he voluntarily appeared to register
in the Government’s National Security Entry-Exit Registra-
tion System and then was placed in removal proceedings.
One month later, he received a notice to appear, charging him
as removable because he had overstayed his visa in violation
of 8 U.S.C. § 1227(a)(1)(B). Five months later, he appeared be-
fore an IJ and accepted an order of voluntary departure, but
he did not depart. According to Mr. Yahya, he remained in
the United States because he did not want to put his
eight-month-old, American-born son on a twenty-hour flight
to Indonesia. “Before I knew it,” he stated, “the days turned
into months, and the months turned into years and … I have
not departed.” 2
More than twelve years after his voluntary departure or-
der, in 2016, Mr. Yahya moved to reopen his removal pro-
ceedings. Because the ninety-day deadline for filing motions
1 A. at 81, 229.
2 Id. at 81.
No. 17-1416 3
to reopen had passed, he sought to satisfy one of the excep-
tions to the time limit by raising a claim for asylum “based on
changed country conditions arising in the country of nation-
ality.” 8 U.S.C. § 1229a(c)(7)(C)(i), (ii). Mr. Yahya said that he
feared that his “moderate” Islamic faith would make him a
target for “radical fundamentalist Islamic groups” in Indone-
sia. 3 To support this assertion, he submitted twenty news ar-
ticles that, in his view, documented this threat.
The IJ denied the motion. He concluded that Mr. Yahya
did not provide sufficient evidence of changed conditions.
He further stated that, in any event, he would “deny reopen-
ing as a matter of discretion given the totality of the record.” 4
He noted that the equities in Mr. Yahya’s favor had to be bal-
anced against the fact that they were acquired after he had
agreed to depart the United States voluntarily and then had
failed to do so.
Mr. Yahya appealed to the Board. He submitted that the
IJ erred by rejecting his “abundant evidence showing that the
presence of ISIS in Indonesia has resulted in changed country
conditions for moderate, westernized Muslims like him and
his family.” 5
The Board upheld the IJ’s decision on the basis of the IJ’s
reasoning. It concluded that Mr. Yahya “ha[d] not carried his
burden of establishing a material change in country condi-
3 Id. at 63–65.
4 Id. at 41.
5 Id. at 19.
4 No. 17-1416
tions for moderate, or westernized, Muslims in Indonesia” be-
tween his last hearing in 2003 and his 2016 motion to reopen. 6
Taking administrative notice of the State Department’s 2003
Country Report on Indonesia, the Board pointed out that “ex-
tremist Islamic groups existed in Indonesia at that time,” and
some of them had attacked and bombed civilians, but
Mr. Yahya had expressed no fear of returning at that time. 7
The Board also underscored that at least two of Mr. Yahya’s
own submissions demonstrated that extremist violence was
present earlier and is not tolerated by the Indonesian govern-
ment.
II
DISCUSSION
Mr. Yahya now contends that the Board abused its discre-
tion in denying his late motion to reopen. Specifically, he
claims that his submissions demonstrated rising levels of vio-
lence since his 2003 voluntary departure order and that the
Board erred in concluding that the increase did not amount to
changed country conditions. He highlights various excerpts
from his submissions that, he asserts, show increased levels
of violence against moderate Muslims by ISIS and the Islamic
Defenders Front, an Indonesian terrorist group seeking to es-
tablish Sharia law in Indonesia. He contends that the Board
overlooked these worsening conditions of violence directed
at moderate Indonesian Muslims and failed to recognize that
6 Id. at 3–4.
7 Id. at 4.
No. 17-1416 5
the State Department’s 2003 report on Indonesia “is silent as
to violence against moderate Muslims.” 8
We begin by placing Mr. Yahya’s claims in the appropriate
legal framework. Mr. Yahya sought reopening of an order to
voluntarily depart the United States entered approximately
thirteen years before his motion was filed. Reopening is gen-
erally available for such orders in removal proceedings, see 8
U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c), but is subject to a
ninety-day deadline. The deadline does not apply, however,
where the alien seeks “[t]o apply or reapply for asylum or
withholding of deportation based on changed circumstances
arising in the country of nationality or in the country to which
deportation has been ordered, if such evidence is material and
was not available and could not have been discovered or pre-
sented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii); see
also 8 U.S.C. § 1229a(c)(7)(C)(ii). In addition, the alien must
establish prima facie eligibility for the relief sought. INS v.
Abudu, 485 U.S. 94, 104 (1988). “Any motion to reopen, re-
gardless of timing, can be denied properly if: (1) it is not sup-
ported by previously unavailable and material evidence; (2) it
fails to establish the applicant’s prima facie eligibility for the
underlying relief sought; or (3) the Board determines discre-
tionary relief is not appropriate in the petitioner’s case.” Boika
v. Holder, 727 F.3d 735, 738 (7th Cir. 2013).
With respect to changed circumstances specifically, we
have stated that “[t]he only requirements are (1) that there be
changed circumstances, (2) that the circumstances be material
and (3) that the evidence showing changed circumstances
8 Pet’r’s Br. 18.
6 No. 17-1416
‘was not available and could not have been discovered or pre-
sented at the previous hearing.’” Joseph v. Holder, 579 F.3d 827,
833–34 (7th Cir. 2009) (quoting 8 C.F.R. § 1003.2(c)(3)(ii)). We
specifically have rejected any higher burden, such as a “dra-
matic change” standard, id. at 833, and we have noted that a
“changed circumstance need not reach the level of a broad so-
cial or political change in a country; a personal or local change
might suffice,” Lin Xing Jiang v. Holder, 639 F.3d 751, 756 (7th
Cir. 2011). 9
On the question whether the evidence establishes changed
country conditions, the Board compared objective evidence of
the state of religious violence in Indonesia from 2003, the time
of Mr. Yahya’s original proceedings, to the evidence he pre-
sented now. We have approved expressly of this methodol-
ogy. In describing the threshold, we have stated:
To constitute a change in country conditions,
the conditions must have done more than
simply worsen cumulatively. That does not
mean that the conditions before and after the
motion to reopen will not be related or con-
nected. Evaluating gradations of human misery
can be a daunting task. Where significant hu-
man rights abuses previously existed, perhaps
9 We have not allowed, however, claims to be made on the basis of changes
to an alien’s personal circumstances in the United States after a prior re-
moval order. Cheng Chen v. Gonzales, 498 F.3d 758, 760 (7th Cir. 2007) (af-
firming denial of motion to reopen where alien’s one-child-policy asylum
claim was based on post-removal order children born in the United
States). To the extent, therefore, that Mr. Yahya’s fears are based on his
longterm residence in the United States, following an order to depart, the
Board was permitted to give them little weight.
No. 17-1416 7
all changes could be understood as a cumula-
tive worsening, but differences in degree mat-
ter. Some situations present conditions so grave
that a new threshold has been met.
Boika, 727 F.3d at 739 (internal citation omitted). We found
that threshold met where, in Boika, the alien’s evidence
showed well documented and specific new threats to the po-
litical opposition following an election in Belarus.
Here, by contrast, although Mr. Yahya has submitted a
significant number of articles, few of them bear directly on the
potential harm he would face on return. Many are concerned
specifically with the threats to Christian communities
throughout the world, the growth of ISIS generally and its
worldwide aims, or the rise of ISIS recruiting in Indonesia.
Few touch on the harms present for moderate Muslims. His
evidence mentions only one ISIS attack in Indonesia and does
not show that the attack targeted moderate Muslims. He has
evidence of only one attack against moderate Muslims be-
tween 2003 and 2016—the 2012 attack against a Canadian
feminist Muslim author, which is not sufficient to show a ma-
terial change in country conditions. His submissions also pro-
vide almost no evidence about the threat of terrorism against
moderate Muslims in Indonesia during 2003. He therefore
does not provide a “baseline” against which to measure a
change in country conditions. Moosa v. Holder, 644 F.3d 380,
386 (7th Cir. 2011). 10
10Mr. Yahya also faults the Board for conflating the extremist groups op-
erating in Indonesia in 2003 with those operating now. The Board’s anal-
ysis, fairly read, is that Islamic extremist groups existed in 2003 and exist
now, and that Mr. Yahya’s evidence as a whole does not show a material
8 No. 17-1416
Accordingly, the evidence he submitted does not show a
fundamental shift in the safety and security of his country for
the moderate Muslim population. Whatever changes have
come to Indonesia since 2003 with respect to violent extremist
groups, Mr. Yahya has failed to establish that the changes
were material to him and to the asylum claim he now wishes
to present. The Board was entitled to conclude that this evi-
dence does not demonstrate “a new threshold” of radical Is-
lamic terrorism in Indonesia in 2016. Boika, 727 F.3d at 739.
Conclusion
Because the Board permissibly concluded that
Mr. Yahya’s submissions do not demonstrate materially
changed conditions in Indonesia between 2003 and 2016, we
DENY the petition.
change in conditions such that he is now more at risk. On this record, that
conclusion was supported by substantial evidence.