Gunawan Liem v. Attorney General United States , 921 F.3d 388 ( 2019 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 18-1955
____________
GUNAWAN LIEM,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
On Petition for Review of an Order of the
Board of Immigration Appeals
(BIA: A079-709-771)
Immigration Judge: Honorable Alberto J. Riefkohl
Argued on February 6, 2019
(Opinion filed April 19, 2019)
Before: HARDIMAN, SCIRICA, and RENDELL, Circuit
Judges
James D. Arden
Melanie Berdecia
Samuel S. Choi [Argued]
Eamon P. Joyce
Sidley Austin
787 Seventh Avenue
New York, NY 10019
Counsel for Petitioner
Joseph H. Hunt
Assistant Attorney General, Civil Division
Song Park
Senior Litigation Counsel
Joseph A. O’Connell [Argued]
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
2
OPINION
RENDELL, Circuit Judge:
Gunawan Liem, an Indonesian national, petitions for
review of the denial of his motion to reopen his removal
proceedings. Although these motions are disfavored, the
Board of Immigration Appeals (the “BIA”) is still required to
meaningfully consider the evidence and arguments presented
by a petitioner and must explain its conclusions. Because the
BIA failed to do so in this case, we will grant Liem’s petition
for review, vacate the order denying his motion to reopen, and
remand to the BIA for further proceedings.
I.
A.
Liem is a native and citizen of Indonesia. He is also
ethnically Chinese and a practicing Seventh Day Adventist
Christian, making him a member of two minority groups in his
country of origin. While in Indonesia, Liem witnessed and
experienced persecution based on his belonging to these
groups.1 As a result, he sought refuge in the United States and,
1
Liem has alleged three specific instances of persecution:
First, he witnessed “Muslims . . . taking over the town [he]
lived in” and “burning down Christian churches.” AR 75.
Second, his father, who conducted business buying and selling
jewelry, was accused of having purchased stolen jewelry.
3
in 1999, was granted a six-month visa for vacationing. He
stayed beyond the expiration of his visa and established a life
here by obtaining gainful employment, marrying his wife, and
fathering two American-born children. Most notably for our
purposes, he has been an active congregant of his local church,
the First Indonesian Seventh-Day Adventist Church, and has
also served the church as a deacon.
In 2003, approximately four years after entering the
United States, Liem filed an application for asylum,
withholding of removal, and protection under the regulations
implementing the Convention Against Torture (the “CAT”).
The Immigration Judge (the “IJ”) denied his application for
asylum as untimely but granted withholding of removal.
Although the IJ expressed some doubt as to whether Liem
would be in “direct danger” if he returned to Indonesia, he
resolved the issue in favor of Liem because he “[was] not
willing to take any chances at th[e] moment and . . . [Liem]
[wa]s asking only for temporary protection.” AR 832–33. The
Government appealed, and the BIA vacated the IJ’s ruling
because Liem “failed to meet his burden of proof to establish
that there is a clear probability that he would be persecuted if
returned to Indonesia.” AR 770. Accordingly, the BIA
ordered Liem removed to Indonesia. Liem did not petition for
review of that order. Instead, he filed a motion to stay his
removal and reopen the proceedings, referencing a continued
“pattern of anti-Chinese harassment and persecution [and] . . .
Liem claims that the police did not find his father credible
because he was Chinese. Third, a mob attacked Liem on his
way home from work because of his Chinese ethnicity. The
mob forced him out of his car, took his wallet, and physically
assaulted him.
4
a pattern of anti-Christian persecution.” AR 634. The BIA
denied this motion, citing U.S. State Department findings of a
decrease in discrimination against Chinese Christians in
Indonesia. Liem petitioned this Court for review of that order,
and we denied his petition. Liem v. Att’y Gen., 280 F. App’x
206, 209 (3d Cir. 2008) (per curiam).2
In early 2018, ICE agents arrested Liem and initiated
the process of removing him to Indonesia. Liem filed a second
motion to reopen his removal proceedings, this time claiming
that, since the time of his merits hearing in 2003, conditions for
Chinese Christians had materially deteriorated to an extent
warranting reopening, despite the temporal and numerical
limitations on motions to reopen.3 In his motion, Liem urged
that various international agencies “have reported that the level
of hatred and Islamic extremism directed at Indonesian
Christians on the grassroots level is rising, and the government
of Indonesia is unwilling to act for fear of reprisals from the
far-right Islamist groups.” AR 31. He also highlighted, among
other things, Indonesia’s laws prohibiting blasphemy, which
are markedly ambiguous and have been used against religious
minorities, as well as the implementation of Sharia law in part
of the country. Liem supported his claim of materially changed
2
We held that we lacked jurisdiction to consider Liem’s
arguments that challenged the BIA’s earlier vacating of his
withholding of removal, since he did not directly petition for
review of that order. Liem, 280 F. App’x at 209. We also
rejected his due process claim and his argument that the BIA
abused its discretion in denying his motion to reopen. Id.
3
Liem also urged that his CAT claim was never adjudicated
because his prior counsel was ineffective. Because this claim
is not featured in his petition for review, we will not address it.
5
country conditions with numerous exhibits4 and referenced
several specifically in his motion to reopen.5
4
Those exhibits, totaling about 190 pages, are as follows:
 Exhibit II: Indonesian Christian whipped for selling
sharia-banned booze, Channel NewsAsia (Jan. 19,
2018) (describing public whipping of Christian man for
selling illegal alcohol);
 Exhibit JJ: Michael Levenson, For judge, these
immigrants in US are like Jews fleeing Nazis, Boston
Globe (Jan. 18, 2018) (describing district court opinion
staying deportation of approximately fifty Indonesian
Christians);
 Exhibit KK: U.S. Dep’t of State, Bureau of Consular
Affairs, Indonesia Travel Advisory (Apr. 17, 2017)
(instructing travelers to “[e]xercise increased caution in
Indonesia due to terrorism” (emphasis omitted));
 Exhibit LL: Amnesty International, Indonesia, Amnesty
International Report 2016/17: The State of the World’s
Human Rights (2017) (describing, among other things,
Indonesia’s blasphemy laws and use of caning as a
punishment);
 Exhibit MM: Human Rights Watch, Indonesia, World
Report 2017 (2017) (summarizing, among other things,
treatment of religious minorities in Indonesia);
 Exhibit NN: Matt Ozug & Ari Shapiro, ‘It’s Our Right’:
Christian Congregation In Indonesia Fights To
Worship In Its Church, NPR (Nov. 1, 2017) (reporting
on ongoing fourteen-year struggle to open a single
church);
 Exhibit OO: Andreas Harsono, Indonesia Sends
Ominous Signal to Religious Minorities, Human Rights
Watch (Sept. 25, 2017) (reporting that Indonesia has not
6
repealed “ambiguous” blasphemy laws despite
recommendation from United Nations to do so);
 Exhibit PP: James Hookway, Curfews, Obligatory
Prayers, Whippings: Hard-Line Islam Emerges in
Indonesia; Conservative Islamic groups are using
political activism and charity work to build wide
support for Shariah-inspired laws, Wall St. J. (Sept. 13,
2017) (detailing conservative Islamic groups’ rise to
power in Indonesia);
 Exhibit QQ: Ben Bland, Indonesia’s Chinese
population fears rising ethnic tensions – Old wounds
reopen in Muslim-majority nation as politicians and
radicals stoke hostility, Fin. Times (Aug. 14, 2017)
(reporting increasing hostility against Chinese);
 Exhibit RR: Ryan Dagur, Indonesian Muslims accuse
Christian lawmaker of blasphemy, UCA News (Aug.
11, 2017) (describing blasphemy accusations leveled
against Christian politician Victor Laiskodat);
 Exhibit SS: Andreas Harsono, The Toxic Impact of
Indonesia’s Abusive Blasphemy Law, Human Rights
Watch (Aug. 5, 2017) (detailing history and current use
of Indonesia’s blasphemy law);
 Exhibit TT: Christian Solidarity Worldwide, Indonesia:
Visit Report 10-23 May 2017 (2017) (detailing
deterioration of “Indonesia’s tradition of religious
pluralism”);
 Exhibit UU: Joe Cochrane, Governor of Jakarta
Withdraws Appeal of Blasphemy Sentence, N.Y. Times
(May 23, 2017) (describing conviction of Christian
governor Basuki Tjahaja Purnama (also known as
“Ahok”) of blasphemy and the public’s response to
conviction);
7
 Exhibit VV: UN experts urge Indonesia to free jailed
politicians, repeal its blasphemy law, UN News Centre
(May 22, 2017) (reporting that United Nations human
rights experts urged Indonesian government to repeal
blasphemy law and release Ahok);
 Exhibit WW: Olivia Tasevski, Anti-Chinese and anti-
Christian sentiment is not new in Indonesia, The
Conversation (May 17, 2017) (describing Ahok’s
conviction and Indonesia’s history of discrimination
against Christians and Chinese);
 Exhibit XX: Indonesia Islam: Governor’s blasphemy
conviction divides a nation, BBC (May 9, 2017)
(reporting on Ahok’s conviction and public’s response);
 Exhibit YY: U.S. Comm’n Int’l Religious Freedom,
2017 Annual Report: Indonesia (Apr. 2017) (reporting
Commission’s findings on treatment of religious
minorities in Indonesia);
 Exhibit ZZ: Religion, power and politics in Indonesia,
BBC (Apr. 20, 2017) (explaining role of religion in
Indonesian politics);
 Exhibit AAA: Yenni Kwok, Conservative Islam Has
Scored a Disquieting Victory in Indonesia’s Normally
Secular Politics, Time (Apr. 20, 2017) (describing ways
in which religion emerged in 2017 election for Jakarta’s
governor);
 Exhibit BBB: Safrin La Batu, Jokowi accused of
promoting secularism, Jakarta Post (Mar. 27, 2017)
(reporting negative backlash received by Indonesian
president after call for separation of religion and
politics);
 Exhibit CCC: Ahok trial: The blasphemy case testing
Indonesian identity, BBC (Feb. 14, 2017) (describing
8
“rising trend of conservativism” and increased
intolerance towards religious minorities and Chinese in
context of Ahok’s trial for blasphemy);
 Exhibit DDD: Jakarta vote: Indonesia hardliners call
for Muslim governor, BBC (Feb. 11, 2017) (reporting
on Indonesian Muslims’ campaign against Ahok);
 Exhibit EEE: Sana Jaffrey, Justice by numbers, New
Mandala (Jan. 12, 2017) (reporting on increase in
vigilantism in Indonesia);
 Exhibit FFF: Firm action needed to curb growing
intolerance: Wahid Foundation, Jakarta Post (Dec. 23,
2016) (summarizing Wahid Foundation report on
increased intolerance and radicalism in Indonesia);
 Exhibit GGG: Indonesian scholars stand up against
growing intolerance, Jakarta Post (Dec. 23, 2016)
(reporting on Indonesian scholars’ response to growing
intolerance);
 Exhibit HHH: Margareth S. Aritonang, Indonesians
increasingly blame the weak: Scholar, Jakarta Post
(Dec. 22, 2016) (reporting on “growing trend of
discriminating against the country’s minorities and
marginalized communities”);
 Exhibit III: Marguerite Afra Sapiie, Indonesian Police
assert control over MUI fatwas, Jakarta Post (Dec. 21,
2016) (describing police involvement in dissemination
of fatwas);
 Exhibit JJJ: Azis Anwar Fachrudin, INSIGHT: Politics
of Muslim identity over Santa outfits, Jakarta Post (Dec.
20, 2016) (detailing 2016 fatwa barring Muslims from
wearing “non-Muslim religious attributes” and
explaining ways in which it is more extreme than past
Christmas fatwas);
9
The BIA, in a single member opinion, denied the motion
to reopen. In this opinion, after noting the standard for granting
 Exhibit KKK: Indonesian protests awaken fears,
Associated Press (Dec. 2, 2016) (describing movement
against Ahok and how it has sparked increased
intolerance of Christians and Chinese);
 Exhibit LLL: Indonesia protest: Jakarta anti-governor
rally turns violent, BBC (Nov. 4, 2016) (reporting on
outbreaks of violence at anti-Ahok rallies);
 Exhibit MMM: Nivell Rayda, Survey Reveals Worrying
Religious Conservatism Among High School Students,
Jakarta Globe (May 25, 2016) (reporting findings on
study investigating religious conservativism of high
school students);
 Exhibit NNN: Robert P. George & Hannah Rosenthal,
Rampant religious persecution against atheists: Robert
P. George, USA Today (May 3, 2016) (noting use of
Indonesia’s blasphemy law against atheist);
 Exhibit OOO: Jonathan Emont, Islamist Intolerance
Poses a Growing Threat to Indonesia’s Minorities,
Time (Apr. 20, 2016) (describing violence perpetrated
by Indonesian Muslims against minorities);
 Exhibit PPP: Mike Thomson, Is Indonesia winning its
fight against Islamic extremism?, BBC (Dec. 19, 2015)
(describing extreme increase in visibility of
conservative Islam in Indonesia); and
 Exhibit QQQ: Church relocation threatens pluralism:
GKI Yasmin, Jakarta Post (Dec. 7, 2015) (reporting on
attempted government relocation of a church).
5
In his motion, Liem cites to Exhibit II, Exhibit KK, Exhibit
LL, Exhibit MM, Exhibit NN, Exhibit OO, Exhibit PP, Exhibit
QQ, Exhibit RR, and Exhibit SS.
10
untimely and number-barred motions to reopen, it concluded—
without explanation—that Liem “offers little comparison
between the country conditions or circumstances in 2003 and
the current conditions or circumstances.” A. 1. The BIA
stated:
In any event, the respondent has
not shown material changes in
country conditions or
circumstances in Indonesia since
either 2003 or 2015/2016. The
Department of State’s 2016
Indonesia International Religious
Freedom Report shows that the
constitution of Indonesia
guarantees freedom of religion and
the right to worship according to
one’s own beliefs but allows the
government to impose some legal
restrictions.[] The articles and
reports submitted by the
respondent show that
discrimination and violence
against minority religions continue
to exist in Indonesia; blasphemy
laws have not been repealed
despite recommendations by
United Nations, but are still being
enforced; and some Christian
churches have problems with local
governments and communities in
connection with building
relocation. However, the
11
documents also show that these
conditions have been a
longstanding problem in
Indonesia, rather than materially
changed conditions or
circumstances (Motion Exhs. LL,
MM-OO, SS, WW, YY). The
respondent argues that the “recent
enactment” of blasphemy laws
target the Christian minority
(Motion at 8). However, the
evidence submitted shows that
blasphemy laws were enacted in
1965 and the threat of blasphemy
law is “nothing new” (Motion Exh.
SS at 2). The respondent also
argues that Indonesia’s Chinese
population fears rising ethnic
tensions (Motion at 9). However,
ethnic tensions have existed since
Indonesia’s independence, and
ethnic tensions against Chinese
minorities have flared up into
violent outbursts periodically since
the country’s independence
(Motion Exh. QQ).
A. 1–2. Based on this, the BIA concluded that Liem did “not
show[] that conditions or circumstances in Indonesia changed
materially, such that his motion falls within the motion to
reopen time and number limitations” and denied his motion as
untimely. A. 2. This petition for review followed.
12
B.
Shortly after the BIA denied Liem’s second motion to
reopen and while this petition was pending, the First Circuit
issued a precedential opinion in a factually related case,
Sihotang v. Sessions, 900 F.3d 46 (1st Cir. 2018). There, the
petitioner, an evangelical Christian from Indonesia, filed a
motion to reopen his 2006 removal proceedings. Id. at 48–49.
The BIA denied his motion “[i]n a terse one-and-a-half page
opinion.” Id. at 49. The First Circuit granted the petition and
vacated and remanded because “the BIA’s analysis [was]
superficial.” Id. at 50. The Court explained:
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
13
country conditions had materially
changed with respect to public and
private reactions (including
vigilante violence) toward
evangelical Christians. Finally,
the BIA neglected to consider
whether attitudes in Indonesia had
materially changed with respect to
persons making public religious
statements.
Id. at 50–51. The First Circuit concluded that this error was
not harmless because “[t]he record [wa]s 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.” Id. at 51. In this vein,
the Court detailed facts reflected in the evidence that the BIA
“completely overlooked.” Id. Many of these facts applied to
evangelical and non-evangelical Christians alike, including the
enactment of Sharia legislation in 2008, the prevention of
thousands of Christians from attending Easter mass in 2010 by
Muslim extremists and the local government, and demands
from over 1,500 Muslims that a Christian found guilty of
blasphemy be executed in 2011. Id. at 51–52. The Court
specifically noted the increased “Islamic fundamentalist
fervor” that might put evangelical Christians “at special risk in
Indonesia” and distinguished this case from prior cases
because of the “especially sharp increase in governmental and
private persecution of Indonesian Christians between 2014 and
2017—a period not under review in any of [our] prior cases.”
Id. at 51, 53.
14
In the wake of Sihotang, the same member of the BIA
who denied the motion to reopen that is the subject of this
petition issued at least eight unpublished decisions granting
reopening of removal proceedings for Indonesian Christians.
See ADD 1–17. One of these decisions is within our circuit.
See ADD 16 (Newark, NJ). In each decision, that member
determined that conditions in Indonesia had materially
changed from a period starting between 2004 and 2009 and
ending in 2018. And although the member cited to Sihotang in
at least seven of these opinions, none of them appear to hinge
on whether the movant was an evangelical Christian or a
Christian who practices privately. Instead, the BIA concluded
generally that “conditions confronting Christians in Indonesia
have deteriorated and intensified between [the movants’] prior
hearing[s] . . . and the filing of [their] motion[s to reopen]
. . . .” ADD 8; accord ADD 16–17.
II.
The BIA had jurisdiction over Liem’s motion to reopen
under 8 C.F.R. § 1003.2. We have jurisdiction over his petition
for review pursuant to 8 U.S.C. § 1252. We review the denial
of a motion to reopen for abuse of discretion and will not
disturb the BIA’s decision “unless it is found to be arbitrary,
irrational, or contrary to law.” Zhu v. Att’y Gen., 744 F.3d 268,
271 (3d Cir. 2014) (quoting Guo v. Ashcroft, 386 F.3d 556, 562
(3d Cir. 2004)) (internal quotation marks and alterations
omitted). We also give deference to the BIA’s evidentiary
findings, id. at 272, and will uphold them if they are supported
by substantial evidence, Sevoian v. Ashcroft, 290 F.3d 166, 174
(3d Cir. 2002). Nonetheless, as we discuss more fully below,
the BIA has a heightened duty “to explicitly consider any
country conditions evidence submitted by an applicant that
15
materially bears on his claim.” Zheng v. Att’y Gen., 549 F.3d
260, 268 (3d Cir. 2008).
III.
We begin our analysis by reviewing the legal principles
at play. Then, we proceed to the merits of Liem’s claim.
A.
8 U.S.C. § 1229a(c)(7) and 8 C.F.R. § 1003.2(c)(2)
require that motions to reopen removal proceedings be filed
within ninety days of the date of entry of the final order
concluding the proceeding to be reopened, and they limit a
party to one motion to reopen. However, these temporal and
numerical limitations do not apply where a petitioner moves
[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 presented at the
previous hearing.
8 C.F.R. § 1003.2(c)(3)(ii). Because Liem’s motion to reopen
at issue in this case falls under this provision, he was required
to provide evidence of materially changed conditions in
Indonesia from the time of his merits hearing in 2003 to the
time of his latest reopening hearing in 2018. See Zhu, 744 F.3d
at 278.
16
In reviewing Liem’s second motion to reopen, the BIA
was obliged to “meaningfully consider[] the evidence and
arguments [Liem] presented.” Id. (citation omitted). The BIA
did not have to “expressly parse each point or discuss each
piece of evidence presented,” but it could not ignore evidence
favorable to Liem. Id. (citations and internal quotation marks
omitted). “To [show that it] fulfill[ed] this requirement, the
BIA must [have] provide[d] an indication that it considered
such evidence, and if the evidence is rejected, an explanation
as to why it was rejected.” Id.
We have acknowledged the “inherent tension” between
the necessity of the BIA to indicate that it has considered all of
the evidence while not needing to expressly parse or discuss
each piece of evidence. Zheng, 549 F.3d at 268. Nevertheless,
and as noted above, the BIA has “a duty to explicitly consider
any country conditions evidence submitted by an applicant that
materially bears on his claim.” Id. (quoting Guo v. Gonzales,
463 F.3d 109, 115 (2d Cir. 2006)) (internal quotation marks
omitted). This duty is heightened for motions to reopen based
on changed country conditions. See id. (citations omitted).
Several of our precedential opinions elaborate on the
nature of this scrutiny. Two cases in which we vacated BIA
denials of untimely and number-barred motions to reopen are
particularly relevant. The first, Zheng v. Attorney General,
involved two petitions for review of these denials. Id. at 261.
In the case of the first petitioner, we identified two errors in the
BIA’s opinion: First, the BIA “did little more than quote
passages from [an] earlier decision . . . without identifying—
let alone discussing—the various statements contained in the
record before it . . . .” Id. at 268. Second, the BIA failed to
discuss most of the evidence presented by that petitioner. Id.
17
We also noted that the Eleventh Circuit had come to a contrary
conclusion about the content of some of the same documents
presented as evidence in a factually similar case. Id. at 269.
As to the second petitioner, we determined that the BIA’s terse
explanation of its decision “amount[ed] to a series of
conclusory statements” and faulted the BIA for its failure to
discuss most of the evidence submitted and its failure to
explain why that evidence was insufficient to show materially
changed country conditions. Id. at 270–71. We granted the
petitions for review, vacated the BIA’s orders, and remanded
for the BIA to rectify these procedural deficiencies. Id. at 272.
In Zhu v. Attorney General, our most recent
precedential opinion addressing this issue, we vacated the
BIA’s order for two reasons: First, the BIA did not
demonstrate that it had examined and considered all of the
evidence presented by the petitioner by either failing to address
certain evidence entirely or failing to explain why it rejected
other evidence. Id. at 274–76. Second, the BIA ignored
statements in reports to which it cited that supported the
petitioner’s position, and failed to discuss why it found those
statements unpersuasive but others in the same reports
persuasive. Id. at 277–78. We concluded that “the BIA failed
to ‘announce its decision in terms sufficient to enable a
reviewing court to perceive that it has heard and thought and
not merely reacted.’” Id. at 278 (quoting Ni v. Holder, 715
F.3d 620, 631 (7th Cir. 2013)). Accordingly, we granted the
petition for review, vacated the BIA’s order, and remanded for
full consideration of all of the evidence presented. Id. at 279.
18
B.
We now turn to Liem’s claim. Liem urges that the BIA
abused its discretion by, first, selectively citing to the record in
concluding that he failed to show a material change in country
conditions and, second, by failing to meaningfully consider
other evidence that supports his position.
The BIA cited to seven of the thirty-five exhibits
submitted by Liem in support of his claim of materially
changed country conditions. Based on those seven exhibits,
but without even a cursory review or description of them, it
determined that “conditions [for Chinese Christians] have been
a longstanding problem . . . in Indonesia, rather than materially
changed conditions or circumstances.” A. 2 (citing Emergency
Stay of Removal and Mot. to Reopen Exhs. LL, MM-OO, SS,
WW, YY). Instead of explaining how it reached this
conclusion, in the remainder of its opinion, the BIA quibbled
with a factual inaccuracy in Liem’s motion and dismissed
rising ethnic tensions against Chinese as one of many periodic
flare-ups that have occurred in Indonesia since it gained its
independence. “[A]s a result, the BIA failed to ‘announce its
decision in terms sufficient to enable [us] to perceive that it has
heard and thought and not merely reacted.’” Zhu, 744 F.3d at
278 (quoting Ni, 715 F.3d at 631). Even if the BIA reached the
correct conclusion, its failure to explain why Liem’s evidence
did not show materially changed conditions constituted an
abuse of discretion. See id.
Moreover, three of the seven exhibits cited by the BIA
contain statements contrary to its conclusion. First, Exhibit LL
explains that caning “was applied to non-Muslims for the first
time in April [of 2016] when a Christian woman received 28
19
strokes of the cane for selling alcohol.”6 AR 413 (emphasis
added). Second, Exhibit NN discusses “Indonesia’s growing
intolerance” of religious minorities, focusing specifically on
Christians. AR 430 (emphasis added). Notably, that exhibit
states that approximately 1,000 churches have been shut down
in Indonesia between 2007 and 2017,7 and that a church
permitting effort that “start[ed] in 2003” has stalled. AR 427,
431; see also AR 428 (discussing government defiance of an
Indonesia Supreme Court decision favoring the church
permitting). Lastly, Exhibit YY asserts that “by many
accounts, violations of the freedom of religion or belief
continue to rise and/or increase in intensity, and experts believe
many incidents go unreported.” AR 491. That exhibit also
discusses the recent discriminatory use of a 2006 regulation
requiring houses of worship to gain certain community support
before obtaining a permit for them to be built. Fundamentalist
Islamic groups have been exploiting this regulation to justify
the closing of existing places of worship and to prevent the
opening of new ones. AR 493.8 Therefore, much like the BIA
6
Exhibit II, which was not cited by the BIA but was cited by
Liem in his motion, reports that, since this occurrence, caning
has been applied to non-Muslims twice more.
7
This number is particularly striking when compared with the
closing of only 516 churches between 1945 and 1998. See AR
1007.
8
The Government contends that Exhibit YY, the U.S.
Commission on International Religious Freedom’s 2017
Report, shows that Indonesia’s conditions have not materially
changed over the relevant time period because the Commission
has listed Indonesia as a “Tier 2” country since 2004. We
reject this argument for three reasons: First, the BIA did not
adopt this reasoning below, and “[w]e are bound to review the
20
in Zhu, the BIA in this case ignored statements in exhibits to
which it cited that support Liem’s position, and it failed to
explain why it found these statements unpersuasive and others
in the same exhibits persuasive. Zhu, 744 F.3d at 277–78; see
also Ni, 715 F.3d at 627 (“Why the BIA found the Reports’
discussion of certain ‘administrative punishments’ and
coercive tactics to be persuasive, but found the Reports’
discussion of forced sterilizations and abortions in Fujian
Province not to be persuasive, however, remains a mystery.”).
The shortcomings of the BIA’s opinion do not end here.
In addition to these deficiencies, the BIA failed to even
mention the vast majority of the exhibits submitted by Liem.
(There are twenty-eight uncited and unmentioned exhibits, to
be exact.) Many of the unaddressed exhibits provide support
for his contention that conditions in Indonesia have materially
agency’s decision based solely on the stated grounds for that
decision.” Zheng v. Gonzales, 422 F.3d 98, 122 (3d Cir. 2005).
Second, 2004 is not the relevant year of comparison, since
Liem’s most recent merits hearing occurred in 2003. Third, we
doubt that proving material change requires that a country
move from Tier 2 to Tier 1, or “countries of particular
concern.” U.S. Comm’n Int’l Religious Freedom, 2017
Annual Report 3 (2017). The Commission defines Tier 2
countries as those whose religious freedom violations meet one
or two of these elements: (1) systematic, (2) ongoing, or (3)
egregious. Id. Tier 1 countries are those whose violations meet
all three elements. Id. Therefore, a country like Indonesia can
maintain Tier 2 status even though its religious freedom
violations worsen either (a) by fulfilling only one element to
fulfilling two, or (b) by barely meeting an element (or two) to
definitively doing so.
21
changed since 2003. A number of them generally reference
Indonesia’s “growing trend of discriminating against the
country’s minorities and marginalized communities.” AR 542
(emphasis added); see also AR 443 (addressing the “rising
intolerance” against Chinese Indonesians (emphasis added)).
For example, contrary to the BIA’s assertion that “the
constitution of Indonesia guarantees freedom of religion and
the right to worship according to one’s own beliefs,” A. 1,
Exhibit TT states that “[i]n recent years Indonesia’s strong and
proud pluralistic tradition [of freedom of religion or belief],
rooted in the heart of the constitution, has come under threat,”
AR. 458 (emphasis added).9 That same exhibit reports that in
2017, “the Indonesian National Commission for Human Rights
. . . published a report detailing a steady increase in [freedom
of religion or belief] violations in recent years.” AR 459
9
We remind the BIA that its duty to not cherry-pick evidence
extends to State Department country reports. See Berishaj v.
Ashcroft, 378 F.3d 314, 320 (3d Cir. 2004) (stating that the BIA
must “address the relevant country report in some detail”),
abrogated on other grounds by Nbaye v. Att’y Gen., 665 F.3d
57 (3d Cir. 2011). Here, the BIA took administrative notice of
the State Department’s 2016 Indonesia International Religious
Freedom Report to describe Indonesia’s constitution and the
government’s power “to impose some legal restrictions” on
religion. A. 1–2, n. 1. But the BIA ignored facts from the
report that suggest a rising intolerance against Christians. See,
e.g., U.S. Dep’t of State, Bureau of Democracy, H.R. and Lab.,
International Religious Freedom Report: Indonesia 1, 8 (2016)
(documenting blasphemy charges against Jakarta governor
Ahok and the caning that marked “the first time a non-Muslim
was punished under Aceh’s special [S]haria-based law”).
22
(emphasis added). Other exhibits offer more specific
illustrations of changes, including the following:
 Exhibit PP, a Wall Street Journal article, details the rise
of “[h]ard-line Islamic groups,” including the Islamic
Defenders Front (known in Indonesia as the “FPI”).
AR 438. The article explains that the FPI “stepped into
the national scene in the mid-2000s” and has since
gained significant influence over Indonesian politicians
and their constituents. AR 440. “In recent years,
lobbying groups such as the [FPI] have helped
introduce more than 400 Sharia[]-inspired laws . . . ,
including those that penalize adultery, force women to
wear headscarves and restrict them from going out at
night.” AR 438. In addition, the FPI “successfully
lobbied Indonesia’s Supreme Court in 2013 to overrule
the government and allow local authorities to restrict
sales of alcohol, arguing it was eating away at
traditional Islamic values.” AR 440. As of 2017, the
group maintained offices in thirty of the thirty-four
Indonesian provinces and had conducted extensive
outreach through, among other things, prayer rallies
and charitable projects. The article provides that,
through this “strong presence” in the community, the
FPI has been able to achieve great political power
because, as one interviewee put it, “[t]he politicians
don’t have much choice but to follow.” AR 440
(internal quotation marks omitted). It concludes with a
timeline detailing the rise of the FPI from 1998 to 2016.
Most notably, at the time of Liem’s merits hearing in
2003, the founder of the FPI was imprisoned “for
inciting his followers to smash up bars and other
entertainment venues the FPI deem[ed] immoral.” AR
23
441. By 2015 and 2016, however, the group had
effectuated a national ban on alcohol sales at
convenience stores and “accuse[d] Jakarta’s Christian
governor . . . of blasphemy, setting off a series of mass
protests that ultimately led to the governor’s defeat in
his re-election bid [that] year,” id., and his conviction
and imprisonment for blasphemy.
 A number of exhibits address the blasphemy conviction
and imprisonment of the former governor of Jakarta,
Basuki Tjahaja Purnama (also known as “Ahok”).
Ahok, a Chinese Christian, became a governor by
succession, not election. In a speech during his 2016
campaign to be elected in his own right for a successive
term, he cited a passage from the Quran to persuade
Muslims that voting for a non-Muslim candidate was
acceptable. Hard-line Islamic groups incited major
protests, where they accused Ahok of blasphemy and
“demand[ed] that he be jailed or executed.” AR 470.
Under extreme public pressure, Indonesian police
ultimately arrested Ahok for blasphemy, for which he
was subsequently tried, convicted, and sentenced to
two years in prison. Although this is a specific and
singular incident of use of the country’s blasphemy
laws against a Christian, a few of the exhibits supplied
by Liem indicate that Ahok’s conviction is “symbolic
of rising religious intolerance in Indonesia.” AR 456.
Others show that the incident has borne increased
public hostility against ethnically Chinese Indonesians.
See AR 554 (“The movement against [Ahok] . . . has
overflowed with racial slurs against his Chinese
ancestry, an unnerving sign in a country with a history
of lashing out violently against the ethnic minority.”);
AR 521 (“[O]penly anti-Chinese speeches at the anti-
24
Ahok rallies and growing racism on social media have
many ethnic Chinese concerned. There is even talk
among some about leaving the country if the
government does not provide the necessary security.”);
AR 561 (“The campaign against [Ahok] has since taken
on anti-Chinese overtones.”). This hostility is, in some
ways, “unprecedented.” AR 511 (“Muslim clerics have
launched a campaign to deny proper burial rights to
deceased Muslims who had voted for Ahok . . . .”).
 Some exhibits demonstrate an increase in enforcement
of Indonesia’s blasphemy laws. See AR 501 (stating
that between 2005 and 2017, no one charged with
blasphemy was acquitted, and implying that some of
those charged prior to 2005 had been acquitted); AR
446–47 (reporting that accusations similar to those that
Ahok was charged with were levied against another
Christian politician).
 Others discuss the very recent use of caning as a
punishment for non-Muslims. It was applied against a
non-Muslim—in that case, a Christian—for the first
time in April of 2016. Since then, it has been applied
against non-Muslims two more times.
 A number of exhibits point to “the [recent]
mainstreaming of extremist positions.” AR 443; see
also AR 506 (“The coalescing of an Islamic vote is a
surprisingly new development in a political scene that
has always been dominated by secular parties.”); AR
492 (“Some Indonesians are concerned by what they
perceive is the ‘Arabization’ or ‘creeping Islamization’
of the country’s more pluralistic form of Islam.”).
25
By failing to address these exhibits—let alone merely
acknowledge them—the BIA contravened our mandate that it
show that it considered the entire evidentiary record, see
Zheng, 549 F.3d at 269–70 (remanding because the BIA
“fail[ed] to discuss most of the evidentiary record” for both
petitioners), and clearly did not fulfill its heightened duty to
“consider any country conditions evidence submitted by
[Liem] that materially bears on his claim,” id. at 268 (quoting
Guo, 463 F.3d at 115) (internal quotation marks omitted). To
be sure, the BIA was not required to cite to every exhibit
provided by Liem. However, given the strength of the
abovementioned evidence in favor of Liem’s position, it was
required to meaningfully account for it in some way.
The fact that the First Circuit has suggested that
conditions for Christians in Indonesia have materially changed
since 2006 and that there has been “an especially sharp increase
in governmental and private persecution of Indonesian
Christians between 2014 and 2017” also gives us pause.
Sihotang, 900 F.3d at 53. The Government attempts to
distinguish Sihotang, arguing that its holding rested on the
BIA’s failure to evaluate the petitioner’s claim as one of
changed country conditions for evangelical Christians rather
than Christians who practice their faith privately. The
Government urges that because Liem did not argue that he is
an evangelical Christian for whom proselytizing is a
requirement, Sihotang is not on point. But the Government’s
view of Sihotang and the facts here is too narrow. As noted
above, the Court’s ruling in Sihotang rested in large measure
on the changed country conditions in Indonesia for all
Christians. See id. at 51–52. Moreover, to the extent its ruling
rested on the distinction between those who practice their faith
privately and those who practice publicly, there is evidence
26
here that Liem’s faith may involve a similarly public
component. In his second motion to reopen, Liem submitted a
letter from his pastor stating that he is a deacon in his church
who “takes care of [] church services” and “meet[s] the needs
of the people in the community.” AR 80. This was reinforced
by letters provided by several parishioners. The Government
did not dispute these facts. Therefore, the increase in religious
intolerance in Indonesia reflected in the record might be
“uniquely problematic” for Liem, since he is a minister in his
community, thus practicing his Christian faith publicly.
Sihotang, 900 F.3d at 53. Moreover, in light of the decisions
rendered by the BIA member in this case after Sihotang was
published, we question whether the BIA would have a view of
this case now that differs from its view of the record eleven
months ago. See Shardar v. Att’y Gen., 503 F.3d 308, 315 (3d
Cir. 2007) (“Administrative agencies must apply the same
basic rules to all similarly situated supplicants.” (quoting
Henry v. INS, 74 F.3d 1, 6 (1st Cir. 1996)).
In sum, the BIA “appears to have completely
overlooked critical evidence” when it failed to explain how it
reached its conclusion and failed to even acknowledge
evidence contrary to its position in both the exhibits it cited and
those it did not cite. Sihotang, 900 F.3d at 51. Under our
precedent, these deficiencies constituted an abuse of
discretion.10
10
In his petition for review, Liem also argues that he
established a prima facie case for withholding of removal.
Because the BIA did not reach this issue, we refrain from
addressing it in the first instance. See INS v. Orlando Ventura,
537 U.S. 12, 16–17 (2002) (per curiam).
27
IV.
Because the BIA did not explain its conclusion and did
not meaningfully consider much of the evidence presented by
Liem, we will grant his petition for review, vacate the denial of
his second motion to reopen, and remand to the BIA for further
proceedings consistent with this opinion. In doing so, we do
not decide whether Liem has shown materially changed
conditions in Indonesia warranting reopening of his removal
proceedings. Rather, we conclude that the abovementioned
evidence contradicting the BIA’s determination is strong
enough to require the BIA to afford it more thorough
consideration. We remand for the BIA to meet its heightened
duty and meaningfully consider all of the evidence, which may
or may not yield a different result.
28