Kurniawan Salim v. Loretta E. Lynch , 831 F.3d 1133 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KURNIAWAN SALIM, No. 13-71833
Petitioner,
Agency No.
v. A077-302-674
LORETTA E. LYNCH, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted June 9, 2016
Pasadena, California
Filed August 1, 2016
Before: Stephen Reinhardt and Kim McLane Wardlaw,
Circuit Judges, and Edward R. Korman,* District Judge.
Opinion by Judge Reinhardt
*
The Honorable Edward R. Korman, United States District Judge for the
Eastern District of New York, sitting by designation.
2 SALIM V. LYNCH
SUMMARY**
Immigration
The panel granted a petition for review of the Board of
Immigration Appeals’ denial of a motion to reopen removal
proceedings based on changed country conditions concerning
the treatment of Christians in Indonesia.
The panel held that the Board improperly evaluated
petitioner’s submission of newly available, material evidence
of changed country conditions in Indonesia, particularly in
light of petitioner’s conversion to Catholicism following his
2006 hearing and the change in the basis of his claim for
relief. The panel concluded that the Board abused its
discretion in concluding that petitioner’s new evidence was
“cumulative” of the evidence submitted at the time of the
earlier hearing.
The panel also held that the Board erred in its analysis of
petitioner’s individualized risk of future persecution, as it
failed to consider the evidence relating to that question in the
context of his membership in a disfavored group.
The panel remanded for further proceedings consistent
with its opinion.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
SALIM V. LYNCH 3
COUNSEL
David M. Haghighi (argued), Law Offices of David M.
Haghighi, Los Angeles, California, for Petitioner.
Tracie N. Jones (argued), Trial Attorney; Cindy S. Ferrier,
Assistant Director; Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C.; for Respondent.
OPINION
REINHARDT, Circuit Judge:
Kurniawan Salim (“Salim”), a native and citizen of
Indonesia, petitions for review from the Board of
Immigration Appeals’ (“BIA”) denial of his motion to reopen
his asylum and withholding of removal proceedings. Salim is
a practicing Catholic, and brings his motion to reopen due to
changes in country conditions for Christians in Indonesia
since his initial hearing before an Immigration Judge (“IJ”) in
2006. We conclude that the BIA abused its discretion when
it denied Salim’s motion to reopen as untimely. Substantial
evidence supports his claim of changed country conditions,
and he has presented sufficient evidence of individualized
risk to establish a prima facie case for the relief sought. We
therefore grant the petition for review and remand for further
proceedings consistent with this opinion.
I. Factual and Procedural Background
Salim arrived in the United States on a tourist visa on
January 22, 2001. He and his wife are the parents of two
4 SALIM V. LYNCH
children, ages six and twelve, both of whom were born in the
United States and are American citizens. Salim has no
criminal record, and since 2004 has worked as a restaurant
manager in California.
In 2003, the Department of Homeland Security initiated
removal proceedings against Salim for having overstayed his
initial visa. In response, Salim submitted an application for
asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”) on the basis of
persecution he faced in Indonesia due to his Chinese
ethnicity. On February 22, 2006, the IJ denied Salim’s asylum
application as untimely, and rejected his withholding of
removal and CAT claims. The BIA affirmed this decision on
September 26, 2007.
Salim then appealed to this court, which remanded to the
BIA in light of our holding in Wakkary v. Holder, 558 F.3d
1049 (9th Cir. 2009), that an asylum applicant’s membership
in a disfavored group is relevant to his request for
withholding of removal. On remand, the BIA again denied
Salim’s application for withholding of removal, concluding
that Salim had not demonstrated a sufficient individualized
risk of persecution on account of his Chinese ethnicity. On
October 15, 2012 this court upheld the BIA decision in an
unpublished memorandum disposition. Salim v. Holder,
483 F. App’x 386 (9th Cir. 2012) (unpublished).
The case comes back before us today after Salim moved
to reopen his immigration proceedings in March of 2013.
While a motion to reopen must generally be filed no later
than 90 days after a final removal decision, 8 C.F.R.
§ 1003.2(c)(2), the deadline does not apply to applications or
reapplications for asylum or withholding of removal that are
SALIM V. LYNCH 5
“based on changed circumstances arising in the country of
nationality.” 8 C.F.R. § 1003(c)(3)(ii). Salim filed his motion
pursuant to this “changed country conditions” exception.
In the time between his previous hearing in 2006 and his
motion to reopen in 2013, Salim converted from Buddhism to
Catholicism. In light of his conversion, Salim stated that he
sought to reopen his asylum claim because circumstances had
“changed dramatically” for Indonesian Christians since 2006.
Salim explained that “anti-Christian sentiment ha[s] increased
in the recent months” in Indonesia, and that the government
was no longer taking steps to “maintain religious freedom.”
For support, Salim submitted over 100 pages of evidence
documenting the rising violence against Indonesian Christian
communities. Salim additionally presented a sworn personal
declaration attesting to his fear of returning to Indonesia as a
Catholic, as well as a letter from his sister in Jakarta
describing the recent targeting of their local church.
On May 8, 2013, in a page-long opinion, the BIA denied
Salim’s motion to reopen as untimely. According to the BIA,
Salim had failed to meet the changed country conditions
exception because the material attached to his motion was
“largely cumulative of the evidence presented when this case
was last before the Immigration Judge.” Furthermore, the
BIA stated that, “[t]here is nothing in the evidence submitted
that relates specifically to the respondent.” Finally, the BIA
noted that while Salim’s motion was based on his fear of
persecution as a Catholic, he had “previously indicated that
he is a Buddhist.” Salim timely petitioned for review of the
BIA’s decision, and the instant petition for review followed.
6 SALIM V. LYNCH
II. Standard of Review
We review the denial of a motion to reopen for abuse of
discretion. Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir.
2008). We review the BIA’s determination of legal questions
de novo, and factual findings for substantial evidence. Bhasin
v. Gonzales, 423 F.3d 977, 983 (9th Cir. 2005).
III. Analysis
A. Changed Country Conditions
Judicial review of a motion to reopen serves as a “safety
valve” in the asylum process. Fernandez v. Gonzales,
439 F.3d 592, 602 (9th Cir. 2006) (citation omitted). Such
oversight “ensure[s] that the BIA lives by its rules and at least
considers new information” bearing on applicants’ need for
and right to relief. Pilica v. Ashcroft, 388 F.3d 941, 948 (6th
Cir. 2004). Salim’s case demonstrates the importance of this
authority. Here, the BIA committed both legal and factual
error when it declared that Salim’s motion to reopen, filed on
an entirely distinct ground from his prior request for relief,
was “cumulative” of the information presented at his previous
hearing.
To meet the changed country conditions exception, a
petitioner’s motion to reopen must present evidence that 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). Thus, the changed country conditions
exception is concerned with two points in time: the
circumstances of the country at the time of the petitioner’s
previous hearing, and those at the time of the motion to
reopen. The “critical question is not whether the allegations
SALIM V. LYNCH 7
bear some connection to a prior application, but rather
whether circumstances have changed sufficiently” in the
country since the prior hearing so that the petitioner now has
a legitimate claim for asylum. Malty v. Ashcroft, 381 F.3d
942, 945 (9th Cir. 2004). Put otherwise, the evidence
submitted with the motion to reopen must be “qualitatively
different from the evidence presented at [the] asylum
hearing.” Id.Salim first filed for asylum in 2006 because he feared
returning to Indonesia due to his Chinese ethnicity. While
Salim’s initial application included minimal evidence related
to the mistreatment of Christians in Indonesia, he was at that
time a Buddhist, and such assertions were therefore not the
basis of his asylum claim.1 The overwhelming majority of the
evidence instead related to the persecution of Salim and his
family members due to their Chinese ethnicity. Now, Salim
has converted to Catholicism, and seeks refuge in this country
due to his risk of persecution in Indonesia on account of his
Christian faith. As we recently recognized in Chandra v.
Holder, 751 F.3d 1034, 1038 (9th Cir. 2014), changed
country conditions can become material due to changes in a
petitioner’s personal circumstances, including religious
1
The evidence relating to the persecution of Christians in Indonesia
submitted with Salim’s initial asylum application in 2006 was limited. It
consisted of four articles addressing the topic, most of which described
isolated, specific incidents. None of the evidence submitted in 2006
demonstrates the rising, widespread persecution alleged in Salim’s motion
to reopen. Indeed, two of the articles reference the “relatively safe” state
of Christians and the “Muslim-Christian peace” as of 2004.
8 SALIM V. LYNCH
conversion.2 In this case, the BIA correctly recognized that
Salim’s motion to reopen and accompanying application for
asylum and other relief were based on his Christian faith,
rather than his Chinese ethnicity. The BIA erred, however, in
its assessment of the evidence presented.
According to the BIA, Salim’s motion did not meet the
changed country conditions exception because the evidence
he submitted was “largely cumulative” of that offered when
the case was before the IJ in 2006. This reasoning makes little
sense where, as here, the motion to reopen presents a different
basis for relief than was relied upon during the prior hearing.
In such cases, the evidence related to the new claim for relief
is necessarily “qualitatively different” from that offered at the
earlier hearing. Thus, the only question that remains before
the BIA is whether the motion to reopen demonstrates a
change in country conditions with respect to the petitioner’s
current basis for relief. The comparison to be made is not
between the motion to reopen and the previous application,
but between the country conditions at the time of the instant
motion, and those at the time of the prior hearing. It was
therefore legal error for the BIA to conclude that Salim’s
2
Although we decided Chandra two weeks after the briefing was
submitted in this case, neither party requested a remand, nor raised that
opinion during oral argument. The BIA agreed that Salim was seeking to
reopen his case “on account of his Christian faith” and, unlike in Chandra,
did not rely on Salim’s changed personal circumstances when it denied his
motion to reopen as untimely. Moreover, the record is adequately
developed as to the issues on which the agency ruled. Thus, we conclude
that remand in this case on the basis of Chandra is not required under INS
v. Ventura, 537 U.S. 12 (2002) (per curiam). See Smolniakova v.
Gonzales, 422 F.3d 1037, 1052 (9th Cir. 2005) (declining to remand when
the “agency has already brought ‘its expertise to bear upon the matter’ and
‘evaluate[d] the evidence’”) (quoting Ventura, 537 U.S. at 17).
SALIM V. LYNCH 9
motion to reopen was “cumulative” of his 2006 application.
Analyzed under the correct standard, substantial evidence
demonstrates that Salim’s motion to reopen meets the
changed country conditions exception.
To support his claim of changed conditions in Indonesia,
Salim submitted numerous articles on the mistreatment of
Christians. Salim further provided multiple reports
documenting “an upsurge of religious radicalism” and
describing the growth of an “extremist fringe” in recent years.
These articles explained that “cases of intolerance are on the
rise,” and that “Christians ha[ve] replaced the Islamic
minority sect Ahmadiyah as the group whose religious
freedoms have been violated the most.” There is substantial
evidence that these developments occurred after 2006, as the
reports state that Christians have increasingly been the target
of Islamic extremist movements in the “past two or three
years.”
Beyond the documentary evidence of increased
persecution of Christians generally, Salim also submitted a
2013 letter from his sister, who remains in Jakarta.3 In her
letter, Salim’s sister described the rising fear experienced by
his immediate family in Indonesia, and warned Salim that he
and his wife and children “should not return home.” She is
Christian, and explained that in light of the growing threat of
violence and lack of protection from local police, “Mom and
I don’t dare to go to church.” These fears were reiterated in
Salim’s sworn declaration, in which he stated that “more and
3
While Salim’s sister and mother remain in Indonesia, his brother was
granted asylum in the United States on May 8, 2012. Salim’s motion to
reopen states that his brother was granted asylum due to the “anti-
Christian [climate] in Indonesia.”
10 SALIM V. LYNCH
more violent activities towards Catholics/Christians” were
happening every day. Salim described an increase in attacks
on Christian worshipers, and stated that the local police
would not provide for his family’s protection if they attended
church.
We have previously found similar evidence sufficient to
meet the burden of proof required under the changed country
conditions exception. In Malty, we remanded the BIA’s
denial of an untimely motion to reopen when the petitioner,
a Coptic Christian, was able to show a qualitative change in
the level of persecution in Egypt “both with respect to Coptic
Christians generally and with respect to [his] family
specifically.” Malty, 381 F.3d at 946. The petitioner in Malty
submitted a report detailing the increased persecution of
Coptic Christians and a personal declaration describing the
recent intimidation of his family members who remained in
Egypt. Id. Faced with this evidence, the BIA denied the
motion on the ground that it showed a “mere continuance of
the previous circumstances.” Id. We held, however, that the
BIA abused its discretion, and concluded that the petitioner’s
materials were “sufficient to meet the evidentiary burden in
the motion to reopen context.” Id. at 947.4 In the present
case, the BIA has made an error remarkably similar to the one
it made in Malty.
4
In Malty, we noted that many petitioners may face difficulty in
procuring supporting affidavits for a motion to reopen on the basis of
changed country conditions. We therefore specifically rejected the need
for corroborating affidavits from relatives living outside of the United
States, and concluded that a motion to reopen may be supported solely by
“a sworn statement from the movant.” 381 F.3d at 947.
SALIM V. LYNCH 11
The evidence accompanying Salim’s motion to reopen
more than meets the burden of proof required to establish
changed country conditions. In Malty, the petitioner
submitted only a single third-party report and his own sworn
declaration attesting to increased violence against Christians.
Id. at 946–47. Here, Salim has offered hundreds of pages of
news articles, a letter from his sister who remains in
Indonesia, and a sworn declaration stating that he fears
returning to Indonesia because the conditions for Christians
have “changed dramatically” since he left. Such evidence is
sufficient to support a motion to reopen. Thus, the BIA
abused its discretion when it concluded that the evidence
proffered did not “meaningfully reflect” changed country
conditions in Indonesia.
B. Individualized Risk
Having concluded that Salim’s motion to reopen meets
the changed country conditions exception, we now turn to
Respondent’s contention that Salim did not make a sufficient
showing of individualized risk. Pointing to the line in the
BIA’s opinion stating that “nothing in the evidence submitted
. . . relates specifically to [Salim],” Respondent claims that
the motion to reopen was properly denied because Salim
“does not make any meaningful arguments that he has an
individualized risk” of future persecution, and thus could not
overcome the timeliness bar.
We have repeatedly held that a motion to reopen “need
only establish a prima facie case for relief, and need not
conclusively establish that [the petitioner] warrants relief.”
Ordonez v. INS, 345 F.3d 777, 785 (9th Cir. 2003). A party
demonstrates prima facie eligibility for relief “where the
evidence reveals a reasonable likelihood that the statutory
12 SALIM V. LYNCH
requirements for relief have been satisfied.” Id. (quoting In re
S-V-M, 22 I. & N. Dec. 1306 (B.I.A. 2000)). The Supreme
Court has also recognized that asylum may be granted where
an applicant demonstrates a one-in-ten chance of future
persecution. INS v. Cardoza-Fonseca, 480 U.S. 421, 440
(1987). Thus, Salim’s motion to reopen must establish only
a reasonable likelihood that, if returned to Indonesia, he faces
at least a one-in-ten chance of persecution because of his
Christian faith.
As an Indonesian Christian, Salim is a member of a
disfavored group. Tampubolon v. Holder, 610 F.3d 1056,
1058 (9th Cir. 2010). While membership in a disfavored
group is not by itself sufficient to demonstrate eligibility for
asylum, “the ‘more serious and widespread the threat’ to the
group in general, ‘the less individualized the threat of
persecution needs to be.’” Sael v. Ashcroft, 386 F.3d 922, 925
(9th Cir. 2004) (quoting Mgoian v. INS, 184 F.3d 1029, 1035
n.4 (9th Cir. 1999)). Christians in Indonesia are “subject to
violence and official discrimination,” and the government has
largely acquiesced in their persecution by those following
“militant expressions of Islam.” Tampubolon, 610 F.3d at
1060. Salim’s family members who remain in Indonesia have
been subject to such intimidation, and the motion to reopen
alleges that the situation for Christians continues to
deteriorate.
Although the BIA opinion acknowledged that Salim’s
motion to reopen was based on his Christian faith, there is no
indication that the BIA applied the disfavored-group analysis
to his case. The BIA did not mention our recognition of
Indonesian Christians as a persecuted group, or consider the
evidence Salim submitted in light of his group-based claim.
The decision instead stated that no evidence “relates
SALIM V. LYNCH 13
specifically” to Salim’s individualized risk of persecution.
Yet this statement is refuted by the immediately preceding
sentence, in which the BIA noted that Salim submitted a
personal declaration and a letter from his family in Jakarta.
Salim’s motion to reopen explicitly relied upon the
“personal experiences” described by his sister, which he
stated “hit[] very close to home.” Her letter detailed the
recent threats against the family’s local church and their
growing inability to freely practice their faith. In ignoring the
importance of Salim’s statement and his sister’s letter, the
BIA failed to recognize that, just as such evidence supports
Salim’s claim of changed country conditions in Indonesia, so
too does it demonstrate his heightened individualized risk if
returned. While the BIA “does not have to write an exegesis
on every contention,” Lopez v. Ashcroft, 366 F.3d 799, 807
n.6 (9th Cir. 2004) (internal quotation marks omitted), it
“must show proper consideration of all factors . . . in
determining whether to grant a motion to reopen.” Bhasin v.
Gonzales, 423 F.3d at 983. In this case, the BIA committed
legal error when it failed to analyze Salim’s individualized
threat of persecution in light of his membership in a
disfavored group, and instead summarily concluded that
Salim’s evidence addressed only “general conditions in
Indonesia.”
The only other statement in the BIA’s opinion that could
be read as finding that Salim did not present sufficient
evidence to be prima facie eligible for relief is the agency’s
observation that “to the extent the evidence addresses anti-
Christian sentiment, we note that the respondent . . .
previously indicated that he is a Buddhist.” Insofar as this line
reflects the BIA’s rejection of Salim’s claim of individualized
risk because of doubt about the good faith of his claim to be
14 SALIM V. LYNCH
a Christian, this circuit has “long held that credibility
determinations on motions to reopen are inappropriate.”
Bhasin, 423 F.3d at 986. The BIA is required to credit
evidence supporting a motion to reopen unless it is
“inherently unbelievable.” Tadevosyan v. Holder, 743 F.3d
1250, 1256 (9th Cir. 2014) (citation omitted). Nothing in the
record before the court casts such doubt on Salim’s
conversion to Christianity.5 Thus, evaluating Salim’s motion
in light of his status as a member of a disfavored group,
substantial evidence does not support a finding by the BIA
that Salim failed to demonstrate sufficient evidence of
individualized risk to make a prima facie case for relief.6
5
By way of explaining the BIA’s comment regarding Salim’s prior
Buddhism, Respondent alleges that it is “unclear whether Salim is a
practicing Christian,” and that “[i]n his opening brief, Salim provides
confusing statements regarding his religion.” This argument is an
unacceptable characterization of what is clearly a typographical error in
Petitioner’s brief. As Respondent notes, Salim’s opening brief contains
a sentence stating that “[t]hough born a Buddhist, he attended Catholic
schools and is not a practicing Catholic, as are his wife and children.”
However, this line must be read in the context of Salim’s statement shortly
afterward regarding his present status as a Christian, and his self-
identification as Christian in his motion to reopen and accompanying
petition for asylum. Indeed, Respondent’s allegation is entirely contrary
to the premise of Salim’s claim for relief—his fear of persecution on
account of his Christian faith. These undisputed facts compel the
conclusion that the sentence Respondent deems “confusing” was in fact
intended to read he “is now a practicing Catholic, as are his wife and
children.” We therefore reject any reliance by Respondent on this error.
6
Salim’s motion to reopen also asserted that he was eligible for
withholding of removal and relief under the Convention Against Torture.
Because we conclude that Salim made a prima facie case for asylum as a
member of a disfavored group, we need not determine whether he
established a prima facie case for his additional claims.
SALIM V. LYNCH 15
IV. Conclusion
We conclude that the BIA improperly evaluated Salim’s
submission of newly available, material evidence of changed
country conditions in Indonesia, particularly in light of
Salim’s conversion to Catholicism following his 2006 hearing
and the change in the basis of his claim for relief. The Board
abused its discretion in concluding that the evidence provided
with his motion to reopen was “cumulative” of the evidence
submitted at the time of the earlier hearing. Likewise, the BIA
erred in its analysis of Salim’s individualized risk, as it failed
to consider the evidence relating to that question in the
context of his membership in a disfavored group. Given the
Board’s legal errors in rejecting Salim’s motion to reopen, we
grant his petition for review, and remand for further
proceedings consistent with this opinion.
PETITION GRANTED AND REMANDED.