Tampubolon v. Holder , 598 F.3d 521 ( 2010 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RIORI TAMPUBOLON; ERLINDA 
SILITONGA, No. 06-70811
Petitioners, Agency Nos.
v.  A095-630-032
ERIC H. HOLDER JR., Attorney A097-854-046
General, OPINION
Respondent.

On Petition for Review of Orders of the
Board of Immigration Appeals
Argued and Submitted
February 4, 2010—Pasadena, California
Filed March 9, 2010
Before: Betty B. Fletcher, Harry Pregerson and
Susan P. Graber, Circuit Judges.
Opinion by Judge Pregerson
3737
3740 TAMPUBOLON v. HOLDER
COUNSEL
Vera A. Weisz, Law Office of Vera A. Weisz, Los Angeles,
California, for the petitioners.
Kristin Edison and Eric W. Marsteller, United States Depart-
ment of Justice, Washington, D.C., for the respondent.
TAMPUBOLON v. HOLDER 3741
OPINION
PREGERSON, Circuit Judge:
Riori Tampubolon (“Tampubolon”) and his wife, Erlinda
Silitonga (“Silitonga”) petition for review of the Board of
Immigration Appeals (“BIA”) decision affirming the immi-
gration judge’s (“IJ”) denial of their applications for asylum,
withholding of removal, and cancellation of removal from
Indonesia. We deny the petition with respect to the asylum
and cancellation of removal claims, but we grant the petition
with respect to the withholding of removal claim. We hold
that the BIA erred in failing to apply disfavored group analy-
sis to petitioners’ withholding claim because the record com-
pels a finding that Christians in Indonesia are a disfavored
group. We remand in accordance with INS v. Orlando Ven-
tura, 537 U.S. 12, 16 (2002).
I. BACKGROUND
Petitioners, devout Protestant Christians, are natives and
citizens of Indonesia. In 1989, when he was 31 years old,
Tampubolon entered the United States on a tourist visa. Like-
wise, in 1992, when she was 22 years old, Silitonga entered
the United States on a tourist visa. Tampubolon and Silitonga
met in the United States and married in 1995. They have two
U.S. citizen daughters, ages 12 and 14. The entire family is
active in their local church. They attend weekly services,
Bible study, and prayer meetings. Silitonga teaches Sunday
School, and the children sing in the choir. Tampubolon and
Silitonga are both employed in the healthcare industry and
pay taxes; neither has been arrested for any crime.
Petitioners came to the attention of the Department of
Homeland Security (“DHS”) when they conformed to the
National Security Entry-Exit Registration System
(“NSEERS”)1 and registered with Immigration and Customs
1
“Special Registration” refers to the National Security Entry-Exit Regis-
tration System (“NSEERS”). Following September 11, 2001, the Attorney
3742 TAMPUBOLON v. HOLDER
Enforcement. In 2003 and 2004, respectively, DHS issued
Notices to Appear to Tampubolon and Silitonga, charging
them with removability for overstaying their visas. Tampu-
bolon and Silitonga conceded removability and applied for
relief from removal, including cancellation of removal, asy-
lum, withholding of removal, and protection under CAT.
The IJ denied all applications for relief.2 The IJ denied peti-
tioners’ application for asylum because they failed to file their
applications within one year of arrival, and also failed to dem-
onstrate changed circumstances. The IJ denied petitioners’
application for withholding of removal because neither had
suffered past persecution and both had similarly situated sib-
lings living in Indonesia who had not experienced problems
practicing their Christian faith. The IJ denied petitioners’
application for cancellation of removal because they failed to
demonstrate that removal would result in exceptional and
extremely unusual hardship to their two U.S. citizen daughters.3
The BIA adopted and affirmed the decision of the IJ, citing
Matter of Burbano, 20 I. & N. Dec. 872 (B.I.A. 1994). Peti-
General instituted NSEERS, which required the collection of data from
aliens upon entry and periodic registration of certain aliens, from majority-
Muslim states and North Korea, present in the United States. See Rajah
v. Mukasey, 544 F.3d 427, 433 (2d Cir. 2008); see also 8 C.F.R.
§ 264.1(f)(4) (2003) (enabling regulation for the NSEERS program). It
appears that NSEERS is used to identify undocumented immigrants and
penalize those who voluntarily comply with the law.
2
Neither the IJ nor the BIA made an adverse credibility finding. Accord-
ingly, this court must take petitioners’ testimony as true. See Kalubi v.
Ashcroft, 364 F.3d 1134, 1137 (9th Cir. 2004).
3
In their opening brief, petitioners failed to raise any issues or advance
any arguments in favor of relief under CAT. Accordingly, petitioners
waived review of their CAT claim. See, e.g., Husyev v. Mukasey, 528 F.3d
1172, 1183 (9th Cir. 2008) (concluding that the petitioner waived CAT
claim by failing to advance any arguments in favor of relief); Martinez-
Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996) (concluding that
petitioner waived a claim that was referenced in the statement of the case,
but not discussed in the body of the opening brief).
TAMPUBOLON v. HOLDER 3743
tioners timely petitioned for review. We have jurisdiction
over the petition pursuant to 8 U.S.C. § 1252(a).
II. STANDARD OF REVIEW
Where, as here, the BIA cites its decision in Burbano, and
does not express disagreement with any part of the IJ’s deci-
sion, we review the IJ’s decision as if it were the BIA’s deci-
sion. See Cinapian v. Holder, 567 F.3d 1067, 1073 (9th Cir.
2009). The BIA’s determination that petitioners have not
established eligibility for asylum or withholding of removal is
reviewed for substantial evidence. See, e.g., Zehatye v. Gon-
zales, 453 F.3d 1182, 1184-85 (9th Cir. 2006).
Under the substantial evidence standard, the BIA’s determi-
nations will be upheld “if the decision is ‘supported by rea-
sonable, substantial, and probative evidence on the record
considered as a whole.’ ” Zhao v. Mukasey, 540 F.3d 1027,
1029 (9th Cir. 2008) (quoting Abebe v. Gonzales, 432 F.3d
1037, 1039-40 (9th Cir. 2005) (en banc)). Reversal, however,
is appropriate when “the evidence in the record compels a rea-
sonable factfinder to conclude that the [BIA’s] decision is
incorrect.” Id.
Purely legal questions, including jurisdictional questions,
are reviewed de novo. See Taslimi v. Holder, 590 F.3d 981,
984 (9th Cir. 2010).
III. ASYLUM
[1] To qualify for asylum, an applicant must file her appli-
cation within one year after arrival in the United States. 8
U.S.C. § 1158(a)(2)(B). The limitations period will be tolled
if the applicant can establish changed circumstances that
materially affect her eligibility for asylum. 8 U.S.C.
§ 1158(a)(2)(D); 8 C.F.R. § 208.4(a)(4)(i). Contrary to the
government’s argument, we have jurisdiction to review an
agency’s changed circumstances determination. See Ramadan
3744 TAMPUBOLON v. HOLDER
v. Gonzales, 479 F.3d 646, 648 (9th Cir. 2007) (per curiam)
(holding that the Real ID Act restored jurisdiction over the
“changed circumstances” question because this question
involved the application of a statutory standard to undisputed
facts).
[2] Petitioners argue that Sael v. Ashcroft, 386 F.3d 922
(9th Cir. 2004), and Lolong v. Gonzales, 400 F.3d 1215 (9th
Cir. 2005) (“Lolong I”), rev’d, 484 F.3d 1173 (9th Cir. 2007)
(en banc) (“Lolong II”), constituted changed circumstances
because they changed United States law in a way that materi-
ally affects their eligibility for asylum. 8 C.F.R.
§ 208.4(a)(4)(i)(B). We review the IJ’s changed circum-
stances determination for substantial evidence. See Ramadan,
479 F.3d at 657. Petitioners’ argument fails because both Sael
and Lolong were decided after petitioners filed their asylum
applications. Accordingly, those decisions could not have
tolled the one-year statute of limitations.4 We affirm the IJ’s
denial of petitioners’ asylum application as untimely.
IV. WITHHOLDING OF REMOVAL
[3] Unlike asylum, there is no statutory time limit for filing
a withholding application. Himri v. Ashcroft, 378 F.3d 932,
937 (9th Cir. 2004) (citing 8 U.S.C. § 1231(b)(3)). Accord-
4
Furthermore, neither Sael nor Lolong I materially affected petitioners’
eligibility for asylum. The panel’s decision in Lolong I is not precedential
because it was vacated, reheard en banc, and not adopted in Lolong II. See
9th Cir. R. 35-3, Advisory Note 3 (“The three-judge panel opinion shall
not be cited as precedent . . . , except to the extent adopted by the en banc
court.”). Moreover, the holding in Sael v. Ashcroft, 386 F.3d 922 (9th Cir.
2004), that the ethnic Chinese minority in Indonesia are a disfavored
group, does not apply here because petitioners are not ethnically Chinese.
In addition, disfavored group analysis existed well before we decided Sael.
See Wakkary v. Holder, 558 F.3d 1049, 1062-63 (9th Cir. 2009) (review-
ing the development of “disfavored group” analysis beginning with Kotasz
v. INS, 31 F.3d 847 (9th Cir. 1994)). Therefore, Sael does not constitute
a changed circumstance that materially affects petitioners’ eligibility for
asylum.
TAMPUBOLON v. HOLDER 3745
ingly, petitioners’ application for withholding of removal is
not time-barred. Petitioners argue that the BIA erred by fail-
ing to apply disfavored group analysis to their withholding
claim because Christians are a disfavored group in Indonesia.
We agree and remand to the BIA to use the disfavored group
analysis in determining whether petitioners are entitled to
withholding of removal.
A. Christians Are a Disfavored Group in Indonesia
[4] A “disfavored group” is “a group of individuals in a
certain country or part of a country, all of whom share a com-
mon, protected characteristic, many of whom are mistreated,
and a substantial number of whom are persecuted” but who
are “not threatened by a pattern or practice of systematic per-
secution.” Wakkary, 558 F.3d at 1052, 1062 (brackets and
internal quotation marks omitted). Although we held in Sael,
386 F.3d at 927, that the ethnic Chinese are a disfavored
group in Indonesia, and suggested in Wakkary, 558 F.3d at
1063, that Chinese Christians are disfavored in Indonesia, we
have never determined whether Christians who are not Chi-
nese are a disfavored group in Indonesia.
In Sael, we held that Indonesia’s ethnic Chinese minority
are a “disfavored group” because of Indonesia’s long history
of anti-Chinese violence and official discrimination. 386 F.3d
at 927. We noted that official policies of ethnic tolerance and
decreased numbers of racially motivated attacks did not
diminish the “disfavored” status of ethnic Chinese because
official discrimination continued and Chinese-Indonesians
experienced “centuries of persecution.” Id. at 929. Here, peti-
tioners have also submitted compelling evidence that Chris-
tians in Indonesia are subject to violence and official
discrimination.
[5] Indonesia is the world’s most populous Muslim coun-
try. Nearly 90 % of Indonesians are Muslim, while Protestant
Christians only account for 6 % of the population. According
3746 TAMPUBOLON v. HOLDER
to the 2003 U.S. State Department Country Report on Human
Rights Practices in Indonesia (“Country Report”), “[t]he Gov-
ernment . . . frequently failed to protect adequately the funda-
mental rights . . . of religious minorities.”
Muslims and Christians lived together in relative peace
until the 1990s when President Suharto began courting mili-
tant Islamic groups to maintain his political power. See Mieke
Kooistra, Minority Rights Group Int’l, Indonesia: Regional
Conflicts and State Terror 14 (2001). Consequently, militant
Islam increased in strength and political influence. Id. During
this time, Suharto purged his cabinet and army of Christians
and replaced them with fundamentalist Muslims. Id. Even
after Suharto’s regime ended, the military and political elite
continued to protect violent Muslim militia groups, such as
Laskar Jihad, whose goal is to kill, convert, or drive out all
non-Muslims from certain parts of Indonesia. Id. at 20; see
also Paul Marshall, Jihad Comes to Indonesia, The Weekly
Standard, Dec. 31, 2001, at 20.
[6] The Indonesian government’s support of, or at the very
least, acquiescence in, militant expressions of Islam has sub-
jected Christians to violent persecution in Indonesia. The
record demonstrates that Christian churches throughout Indo-
nesia have been burned, bombed, and vandalized by Muslim
extremists. These attacks are often accompanied by threats,
such as: “God has no son. Jesus could not help you. Until
doomsday, Muslims will not make peace with Christians.
Death to all Christians.” See Seth Mydans, Jihad Seethes, and
Grows, on Indonesian Island, N.Y. Times, Jan. 10, 2002, at
A3. Petitioners’ family members who remain in Indonesia
have been affected by these attacks. For example, Silitonga
testified that Muslim extremists threatened to kill people who
attended worship service at her sister’s church in Sumatra on
Christmas Eve in 2000. According to the 2003 U.S. Depart-
ment of State International Religious Freedom Report on
Indonesia (“Religious Freedom Report”), at least 25 churches
were destroyed in 2003. Although mosques are also subject to
TAMPUBOLON v. HOLDER 3747
attack, only one mosque was destroyed during the same
reporting period.
[7] Christians living in some areas, such as the Maluku
Islands, are subject to even greater violence, such as forced
conversions and ritual circumcisions. See, e.g., Catherine
Philp, Indonesian Christians Butchered in Islamic ‘Crusades’,
The Scotsman, July 8, 2001, at 18. In these areas, Christian
villages are attacked and Christians are forced to flee their
homes. Another concern is that Christians, who like all Indo-
nesians must carry identification cards denoting their religious
affiliation, are murdered at unofficial identification check-
points.
[8] Laskar Jihad is responsible for much of the Christian-
targeted violence in Indonesia. The activities of this paramili-
tary group escalated the bilateral Muslim-Christian tensions to
a one-sided religious cleansing and slaughter of Christians
between 1998 and 2002. Marshall, supra at 20. According to
local eyewitnesses, the military participates in attacks on
churches, and Indonesians widely believe that the government
cannot or will not protect Christians against Muslim attacks.
See, e.g., Indonesian Military Deny Allegations Soldiers Took
Part in Church Attack, Associated Press, Apr. 29, 2002 (wit-
nesses stated that uniformed soldiers participated in an attack
on a church); Philp, supra at 18 (noting that the government’s
reaction to forced conversions and circumcisions was “aston-
ishingly weak”); Kooistra, supra at 20 (noting that “it is obvi-
ous that [Laskar Jihad] is well-armed, well-financed and well-
protected by the military or powerful people with connections
to the former ruling elite”). Despite reductions of interreli-
gious violence, the Religious Freedom Report notes that the
government failed to hold accountable religious extremists
who killed and terrorized Christians, even as it fully prose-
cuted and punished Christian leaders for subversion.
[9] In addition to condoning or turning a blind eye to the
persecution of Christians by private individuals, evidence in
3748 TAMPUBOLON v. HOLDER
the record indicates that the Indonesian government discrimi-
nates against Christians. For example, according to the Reli-
gious Freedom Report, Christians complained that the
government made it harder for them to build houses of wor-
ship than Muslims. Religious minorities also contend that
they are excluded from prime civil service postings and slots
at public universities.
[10] Christian Indonesians have also suffered private dis-
crimination and marginalization by the general populace. For
example, the 2003 Country Report noted that estates housing
only Muslims have grown increasingly popular. Moreover,
according to a 2002 survey in Jakarta, 79.6% of respondents
believed that the government should outlaw groups that fol-
low faiths other than Islam, 72.5% believed that members of
minority religions should not be permitted to teach in public
schools, 58% support an Islamic state, and 42% would not
allow churches to be built in their neighborhood. See Devi
Asmarani, Many Muslim Indonesians Say They Want an
Islamic State, The Straits Times (Singapore), Jan. 2, 2002, at
1-2.
[11] Christian Indonesians are targeted for violence and
experience official and unofficial discrimination in many fac-
ets of their lives. Although the record demonstrates that the
Indonesian government does not promulgate facially discrimi-
natory laws against Christians, this fact does not address its
discriminatory enforcement of facially neutral laws or its
acquiescence in widespread private discrimination and vio-
lence against Christians. See Sael, 386 F.3d at 929. The record
demonstrates that Christian Indonesians are mistreated, and
some are subject to persecution. See Wakkary, 558 F.3d at
1052. Accordingly, any reasonable factfinder would be com-
pelled to conclude on this record that Christian Indonesians
are a disfavored group.
TAMPUBOLON v. HOLDER 3749
B. Disfavored Group Analysis in the Withholding
Context
[12] As we recognized in Wakkary, disfavored group anal-
ysis is an evidentiary concept that applies when a petitioner
attempts to show that she will be individually singled out for
persecution.5 Id. at 1063. Evidence of both individual and
group targeting are relevant to demonstrate the likelihood that
a particular individual will be persecuted. Id. at 1062-63.
Therefore, “[t]he more evidence of group targeting an . . .
applicant proffers, the less evidence of individually specific
evidence [s]he needs to [satisfy her ultimate burden of
proof].” Id. at 1064. Nevertheless, a petitioner’s membership
in a disfavored group is not sufficient by itself to meet her
ultimate burden of proof; “some evidence of individualized
risk is necessary for the petitioner to succeed.” Id. at 1065.
[13] Here, the BIA failed to analyze petitioners’ withhold-
ing claim according to disfavored group analysis. Because the
5
Two avenues are available for establishing eligibility for withholding
of removal: (1) past persecution, which creates a presumption of eligibility
for withholding of removal; and (2) a clear probability of future persecu-
tion. See 8 C.F.R. § 208.16(b); see also Al-Harbi v. INS, 242 F.3d 882,
888-89 (9th Cir. 2001) (discussing the “clear probability standard” for
withholding of removal). A clear probability of future persecution may be
established in one of two ways. First, the applicant may demonstrate that
it is more likely than not that she will be singled out individually for perse-
cution on account of a protected ground. See 8 C.F.R. § 1208.16(b)(2).
Second, in the absence of any individualized targeting, the applicant may
demonstrate that she is a member of a group that is subject to a “pattern
or practice of persecution” in her home country. Wakkary, 558 F.3d at
1060.
Disfavored group analysis is triggered only when a petitioner attempts
to show that she will more likely than not be singled out individually for
persecution on account of a protected ground. That is the precise situation
in this case. Here, petitioners concede that they did not experience past
persecution and do not argue that Christians in Indonesia are subject to a
pattern or practice of persecution. Rather, petitioners rely on the “individu-
alized risk of persecution” avenue to establish eligibility for withholding.
3750 TAMPUBOLON v. HOLDER
record compels the conclusion that Christians in Indonesia are
a disfavored group and petitioners are Christians, we must
remand to the BIA for it to determine whether the combina-
tion of disfavored group evidence and evidence of individual-
ized risk is sufficient to establish a clear probability that
petitioners will be persecuted if removed to Indonesia.6 Wak-
kary, 558 F.3d at 1067.
V. CANCELLATION OF REMOVAL
The IJ denied petitioners’ application for cancellation of
removal because petitioners did not demonstrate that their
removal would result in exceptional and extremely unusual
hardship to their two U.S. citizen daughters. See 8 U.S.C.
§ 1229b(b)(1)(D). This court lacks jurisdiction to review an
agency’s “exceptional and extremely unusual hardship” deter-
mination. See Romero-Torres v. Ashcroft, 327 F.3d 887, 888
(9th Cir. 2003) (holding that the “ ‘exceptional and extremely
unusual hardship’ determination is a subjective, discretionary
judgment that has been carved out of our appellate jurisdic-
tion”). This court retains jurisdiction, however, to review due
process challenges and other questions of law. See, e.g.,
Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir.
2005). We review our own jurisdiction de novo. Taslimi, 590
F.3d at 984.
[14] Petitioners argue that the BIA violated their due pro-
cess rights by failing to consider the effect of Sael and Lolong
I. The BIA violates an alien’s due process rights if: “(1) the
proceeding was so fundamentally unfair that the alien was
prevented from reasonably presenting his case, and (2) the
alien demonstrates prejudice, which means that the outcome
of the proceeding may have been affected by the alleged vio-
6
The record reflects that petitioners’ family members continue to live in
Indonesia, but that unlike their family members, petitioners would return
Westernized to Indonesia after living in the United States for over twenty
years and raising two U.S. citizen children.
TAMPUBOLON v. HOLDER 3751
lation.” Ibarra-Flores v. Gonzales, 439 F.3d 614, 620-21 (9th
Cir. 2006) (citations and internal quotation marks omitted).
[15] We decided Sael and Lolong I after the IJ rendered his
decision. Both cases involved applications for asylum and
neither dealt with cancellation of removal. Accordingly, nei-
ther case changed the law for cancellation of removal. The
BIA’s failure to address two irrelevant cases does not render
the proceeding fundamentally unfair. Because petitioners fail
to state a colorable due process claim, we lack jurisdiction to
review the IJ’s denial of petitioners’ application for cancella-
tion of removal.
VI. CONCLUSION
In summary, we hold that on this record, Christians are a
disfavored group in Indonesia and conclude that the BIA
erred in failing to analyze petitioners’ withholding claim
according to disfavored group analysis. Therefore, we grant
the petition for review and remand for the BIA to apply disfa-
vored group analysis. We affirm the BIA and deny the peti-
tion with respect to all other applications for relief. Costs on
appeal awarded to petitioners.
PETITION GRANTED IN PART, DENIED IN PART,
AND REMANDED.