Meriyu v. William Barr ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-1892
MERIYU,
Petitioner,
v.
WILLIAM P. BARR, Attorney General
of the United States,
Respondent.
____________________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A079-319-281
____________________
ARGUED DECEMBER 17, 2019 — DECIDED FEBRUARY 26, 2020
____________________
Before RIPPLE, SYKES, and ST. EVE, Circuit Judges.
RIPPLE, Circuit Judge. Meriyu, an Indonesian citizen who
is of Chinese descent and of the Buddhist faith, petitions for
review of the denial of her motion to reopen removal pro-
ceedings that concluded more than fourteen years ago. In
2002, Ms. Meriyu sought relief based on fear of persecution
on account of race and religion but was ordered removed
after she failed to appear at a hearing before an immigration
2 No. 19-1892
judge. Fourteen years later, she moved to reopen the pro-
ceedings. The Board of Immigration Appeals (“the Board”)
upheld an IJ’s ruling that the motion was untimely and that
she could not show a material change in country conditions
since the hearing. She subsequently filed two motions to re-
open that were denied for similar reasons. In this petition for
review, Ms. Meriyu challenges the denial of her most recent
motion to reopen. The Board did not abuse its discretion in
denying her motion, and we therefore deny her petition for
review.
I.
BACKGROUND
Ms. Meriyu, now forty-nine years old, testified that she
experienced mistreatment because of her Chinese ethnicity
and Buddhist faith while growing up in Indonesia. In high
school, she once was taunted on her walk to a bus stop, held
up at knifepoint, and then sexually molested. She recalled
being subjected to discrimination at local temples during
Chinese New Year festivities, when Indonesian Muslims
would “extort money” from Chinese Buddhists and “threat-
en us.”1 In May 1998, when large-scale riots erupted across
the country (eventually leading to the resignation of Presi-
dent Suharto and the fall of the New Order government), her
brother’s shop and her aunt’s home were looted and burned,
and her sister’s home was vandalized. She says that the vio-
lence prompted her to leave Indonesia, and in 2000 she came
to the United States on a six-month nonimmigrant visa. She
overstayed.
1 Admin. R. at 310.
No. 19-1892 3
Since coming to the United States, Ms. Meriyu has taken
care of her mother, who died in 2005; married; and raised a
child, who is now twelve years old. In 2001, Ms. Meriyu ap-
plied for asylum. In 2002, she was served with a Notice to
Appear charging her with removability under
8 U.S.C. § 1227(a)(1)(B), as an alien who remained longer
than permitted after admission. At a removal hearing,
Ms. Meriyu conceded removability but requested asylum
and withholding of removal. Her hearing before an immi-
gration judge was scheduled for June 2003, but she failed to
appear and was ordered removed in absentia. Her attorney
at the time moved to withdraw, and Ms. Meriyu’s applica-
tion was denied for lack of prosecution.
In September 2003, Ms. Meriyu moved to reopen her
case, alleging that she did not appear at her hearing because
she had been in an accident three days earlier and sustained
injuries to her ankle and foot. The IJ denied the motion be-
cause she had not met her burden of establishing that her
injuries constituted exceptional circumstances excusing her
failure to appear for her removal hearing. The IJ added that
Ms. Meriyu had not complied with the requirements set
forth in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), to
establish ineffective assistance of counsel.
Fourteen years later, in late 2017, Ms. Meriyu moved
again to reopen her case, arguing that the previous IJ had
ignored the medical evidence of her injuries and that coun-
try conditions in Indonesia had materially changed. She at-
tached five publications describing the treatment of ethnic
Chinese in Indonesia, three of which discussed the indict-
ment and subsequent conviction of former Jakarta governor
Basuki Tjahaja Purnama, a Christian of Chinese descent
4 No. 19-1892
known as “Ahok,” who was sentenced to prison earlier in
2017 on blasphemy charges after a politically motivated
smear campaign. The IJ denied her motion, explaining, first,
that she was not entitled to equitable tolling (because she
had not introduced corroborative evidence of her foot inju-
ries, for instance), and, second, that she had not shown that
conditions in Indonesia had materially changed (because her
evidence reflected only “ongoing discrimination and mis-
treatment” by certain segments of society).2
Ms. Meriyu appealed, and the Board upheld the IJ’s deci-
sion. The Board explained that her motion to reopen was un-
timely, having been filed more than fourteen years after en-
try of the final administrative removal order; that
Ms. Meriyu failed to show that she exercised due diligence
to equitably toll the ninety-day filing deadline for motions to
reopen; and that she had not established that conditions in
Indonesia had materially changed since her 2003 hearing.
The Board concurred in the IJ’s findings that the record evi-
dence showed that the ongoing discrimination and mis-
treatment by some segments of Indonesian society were
“similar and not materially different” from the conditions
alleged by Ms. Meriyu in her asylum application.3
In November 2018, Ms. Meriyu filed a motion to reopen
and reconsider with the Board, insisting that conditions in
Indonesia had changed materially since 2003. Around 2003,
she noted, Indonesia had been promoting racial and ethnic
tolerance, loosening its policy towards minorities, and even
inviting them to participate in politics. By 2017, however,
2 Id. at 131.
3 Id. at 27.
No. 19-1892 5
ethnicity and religion “came to the fore again”: Intolerant
groups protested the governorship of the Chinese Christian
politician Ahok, who later was imprisoned on charges of
blasphemy.4
In April 2019, the Board denied her motion, reiterating
that the motion to reopen was untimely and that the doctrine
of equitable tolling did not apply. The Board also stood by its
prior finding that Ms. Meriyu had not established that condi-
tions had materially changed for ethnic Chinese and Bud-
dhist minorities in Indonesia.
II.
DISCUSSION
Our review is limited to the Board’s April 2019 denial of
Ms. Meriyu’s motion to reopen and reconsider. Generally, an
alien may file only one motion to reopen and that motion
must be filed within ninety days of the final administrative
order of removal. See 8 U.S.C. § 1229a(c)(7)(A) & (C); 8 C.F.R.
§ 1003.2(c). Because Ms. Meriyu did not file her motion to
reopen until 2017, some fourteen years after the filing dead-
line, she may reopen her case only if she shows material evi-
dence of changed country conditions in Indonesia. See 8
U.S.C. § 1229a(c)(7)(C)(ii); see also 8 C.F.R. § 1003.2(c)(3)(ii).
The deadline does not apply if the motion is based on
changed country conditions, as long as the supporting evi-
dence is material, and was not previously available and
could not have been discovered or presented at the prior
hearing. 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R.
§ 1003.2(c)(3)(ii); see Joseph v. Holder, 579 F.3d 827, 833–34 (7th
4 Id. at 16.
6 No. 19-1892
Cir. 2009). Changed country conditions must reflect more
than a “cumulative worsening” of circumstances. Boika v.
Holder, 727 F.3d 735, 739 (7th Cir. 2013). However, they “need
not reach the level of a broad social 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). We review
the denial of the motion to reopen for an abuse of discretion.
Boika, 727 F.3d at 738.
Ms. Meriyu first challenges the Board’s determination
that her evidence showed mistreatment that was merely on-
going rather than suggestive of a material change. She ar-
gues that the Board overlooked the “growing pattern” of in-
creased enforcement of Indonesia’s blasphemy laws and the
“threat such laws pose to religious minorities.”5
Because Ms. Meriyu seeks to overturn the denial of her
motion to reconsider, she must “identif[y] specific factual or
legal errors in [the Board’s] prior ruling.” Shaohua He v. Hold-
er, 781 F.3d 880, 882 (7th Cir. 2015) (internal quotation marks
omitted). Where a petitioner raises “potentially meritorious
arguments,” the Board must consider those arguments, and
we have “frequently remanded cases” where the Board
failed to do so. Kebe v. Gonzales, 473 F.3d 855, 857 (7th Cir.
2007).
Its assessment may have been sparse, but the Board was
not required to give an “exegesis on every contention,”
Mansour v. INS, 230 F.3d 902, 908 (7th Cir. 2000) (internal
quotation marks omitted). What it did say was sufficient to
address the scant evidence that Ms. Meriyu put into the rec-
ord. In its order of April 10, 2019, the Board addressed
5 Appellant’s Br. 9.
No. 19-1892 7
Ms. Meriyu’s contention that the record evidence showed
there had been an “end to the long-established hostility
against minorities” around the time of her 2003 hearing.6
The Board concluded that this claim was “not otherwise
borne out by the evidence in the record.”7 It determined that
the record did not reflect materially changed country condi-
tions. Some of the reports Ms. Meriyu submitted described
adverse conditions (including racially-tinged protests of an
ethnic Chinese Christian governor), but others chronicled
improvement (especially in the conditions for ethnic Chinese
in the decade after Suharto’s fall). In light of the paucity of
her evidence, the Board’s conclusion that country conditions
had not materially changed was not unreasonable.
Ms. Meriyu next contends that the Board erred by failing
to take administrative notice of the U.S. Department of State
country reports, which, she submits, confirm that the Indo-
nesian government’s increased enforcement of blasphemy
laws was “fuel[ing] discrimination and abuse against reli-
gious minorities.”8 Specifically, Ms. Meriyu argues that the
Board underappreciated the significance of not only the con-
viction of the Chinese Christian politician Ahok but also the
conviction of an ethnic Chinese woman from Ms. Meriyu’s
home city who was sentenced to eighteen months in prison
after she asked a mosque to lower the volume of its loud-
speakers.
6 Admin. R. at 8 (internal quotation marks omitted).
7 Id. at 8.
8 Appellant’s Br. 10.
8 No. 19-1892
Even though the Board may take administrative notice of
the country reports not considered by the IJ, no regulation or
court decision requires the Board to do so. See 8 C.F.R.
§ 1003.1(d)(3)(iv) (providing that the Board may not engage
in factfinding but may take administrative notice of common-
ly known facts including current events or the contents of
official documents); Meghani v. INS, 236 F.3d 843, 848 (7th
Cir. 2001) (explaining that the Board is not required to take
judicial notice sua sponte of new country reports). That is
not to say that the Board can simply ignore current devel-
opments. We may take judicial notice of more recent country
reports, even where the Board does not do so. Lin Xing Jiang,
639 F.3d at 756 n.2. Country reports may sometimes be the
“best source of information” about conditions in a country,
Ping Zheng v. Holder, 701 F.3d 237, 242 (7th Cir. 2012) (inter-
nal quotation marks omitted), but their generalized nature
often limits their discussion of more specific or local prob-
lems, Gomes v. Gonzales, 473 F.3d 746, 756 (7th Cir. 2007); see
also U.S. Dep’t of Justice, Country Conditions Research,
https://www.justice.gov/ eoir/country-conditions-research
(last visited Feb. 21, 2020) (explaining that country reports
are not necessarily exhaustive and are not meant to be con-
clusive in asylum cases).
The country reports that Ms. Meriyu cites do not cause us
to question the Board’s conclusion that conditions in Indone-
sia had not materially changed. Foremost, conditions in In-
donesia in 2003 were worse than Ms. Meriyu suggests. In her
telling, conditions in 2003 marked “the end in the long-
established hostility against the minorities,” yet by 2017,
ethnic tensions had spiked, as illustrated by Ahok’s convic-
No. 19-1892 9
tion.9 This version, however, is not supported by the U.S.
Department of State reports from 2003 to 2018. These reports
describe continuing violence throughout 2003. According to
the report from 2003, “[t]errorists, civilians, and armed
groups also committed serious human rights abuses during
the year, and the Government was in some cases unable or
unwilling to prevent these abuses.” U.S. Dep’t of State, Bu-
reau of Democracy, H.R. and Lab., Indonesia: Country Re-
ports on Human Rights Practices – 2003, 2 (Feb. 25, 2004).
The report explains that the 1998 riots may have ended by
2003, but the government still had “failed to make progress
in establishing accountability for the … riots, which included
acts of torture and other attacks against Chinese Indonesian
women in Jakarta and other cities.” Id. at 8.
The United States also publishes reports specifically ad-
dressing issues of religious freedom. Although there was no
U.S. Department of State International Religious Freedom
Report available for the year 2003, the reports from around
that period—2000 and 2004—reflect that it was a violent time
in Indonesia, not a harbinger of peace. The 2000 report de-
tailed religious violence and ineffective government re-
sponse. According to the 2004 report, terrorist attacks per-
sisted through 2003, and “[t]he Government failed to hold
accountable some religious extremists.” U.S. Dep’t of State,
Bureau of Democracy, H.R. and Lab., Indonesia: Internation-
al Religious Freedom Report 2004, 1 (Aug. 15, 2005).
When compared to the 2003 conditions described in the
State Department reports, current conditions in Indonesia do
not reflect any “new threshold” of human rights abuses. Boi-
9 Admin. R. at 16.
10 No. 19-1892
ka, 727 F.3d at 739. The U.S. Department of State Country
Reports on Human Rights Practices and International Reli-
gious Freedom for the years 2016 through 2018 do not un-
dermine the Board’s determination that conditions have not
materially changed. Moreover, our independent review of
the State Department’s Human Rights and Religious Free-
dom reports from 2016 to 2018 turned up only occasional
references to violence toward ethnic Chinese and Buddhists,
and none that could be characterized as persecution.
Finally, Ms. Meriyu argues that the Board’s conclusion is
at odds with decisions from other circuits that have found a
material change in conditions for religious minorities in In-
donesia. She points first to Liem v. Att’y Gen., 921 F.3d 388
(3d Cir. 2019), in which the Third Circuit remanded the case
because the Board failed to consider extensive evidence of
worsening conditions for Indonesian Christians. But Liem
does not help Ms. Meriyu because it focused on the visibility
of the petitioner’s religious practices and threats of violence
that were particular to Christians, not necessarily other mi-
norities. The Third Circuit pointed to Mr. Liem’s role as a
deacon to conclude that “the increase in religious intolerance
in Indonesia reflected in the record might be uniquely prob-
lematic for Liem, since he is a minister in his community,
thus practicing his Christian faith publicly.” Id. at 400 (quota-
tion marks omitted). Further, Mr. Liem introduced substan-
tially more evidence than Ms. Meriyu: He submitted approx-
imately 190 pages of evidence. Id. at 391 n.4.
Ms. Meriyu next invokes Sihotang v. Sessions, 900 F.3d 46,
53 (1st Cir. 2018), in which the First Circuit remanded the
case for consideration of evidence of an “especially sharp
increase in governmental and private persecution of Indone-
No. 19-1892 11
sian Christians between 2014 and 2017.” Sihotang, however,
is distinguishable because it involved evangelical Christians,
“for whom public proselytizing is a religious obligation.” Id.
at 50. Sihotang turned on evidence of detailed descriptions of
violence towards Christians, including instances in which
the local government supported extremists in blocking
Christians from attending Easter Mass and clergymen were
stabbed in “broad daylight.” Id. at 51.
Ms. Meriyu’s third example is Salim v. Lynch, 831 F.3d
1133 (9th Cir. 2016), in which the Ninth Circuit remanded
the case for consideration of evidence that Islamic extremist
movements had targeted Indonesian Christians and that cur-
rent conditions had changed from conditions at the time of
the petitioner’s previous hearing. Salim is distinguishable,
however, because the Ninth Circuit explicitly restricted its
discussion to Indonesian Christians when determining that
Mr. Salim’s conversion from Buddhism to Catholicism
placed him at risk for persecution he would not have faced
had he not converted. Id. at 1137–38. In the view of the Ninth
Circuit, Mr. Salim—as a Christian—belonged to “the group
whose religious freedoms have been violated the most.” Id.
at 1138 (internal quotation marks omitted). Mr. Salim also
submitted evidence that changed circumstances would affect
him personally, including a letter from his sister describing
“the growing threat of violence and lack of protection from
local police.” Id.
Ms. Meriyu’s circumstances more closely resemble those
in Yahya v. Sessions, 889 F.3d 392 (7th Cir. 2018), where we af-
firmed a determination by the Board that conditions had not
materially changed for moderate Muslims. Our reasoning in
Yahya closely tracks the Board’s orders in this case. There, as
12 No. 19-1892
here, the applicant presented sparse evidence of violence
and “almost no evidence” about the threat the applicant
would have faced in 2003, at the time of Mr. Yahya’s original
proceedings. Id. at 396. Just as Mr. Yahya’s evidence of mis-
treatment of Christians did not “bear directly on the poten-
tial harm he would face on return,” id., Ms. Meriyu’s evi-
dence of Ahok’s conviction—as the Board determined—did
not suggest any prospect of persecution if she returned to
Indonesia.
Conclusion
Because the Board permissibly concluded that
Ms. Meriyu did not demonstrate that conditions in Indone-
sia had materially changed between 2003 and 2017, the
Board did not abuse its discretion in denying her petition to
reopen removal proceedings. Accordingly, we deny the peti-
tion for review.
PETITION DENIED