660 F. App'x 524
9th Cir.2016Background
- Henri Nababan and Harlena Rose Silalahi, Indonesian nationals, petitioned for review of the BIA’s denial of their motion to reopen removal proceedings.
- The motion to reopen was filed more than 90 days after the final removal order, making it untimely under 8 C.F.R. § 1003.2(c)(2).
- Petitioners claimed materially changed country conditions in Indonesia and individualized risk of persecution as Christians and because they have three U.S. citizen children and substantial U.S. residence.
- The BIA found ongoing religious intolerance in Indonesia but concluded violence against Christians was not systemic or pervasive and that petitioners failed to show individualized targeting or materially changed circumstances sufficient to excuse the time bar.
- Petitioners also argued risk based on American ties; the panel noted the court has not recognized American ties alone as a social group and found petitioners waived that argument by not challenging the BIA’s findings in their opening brief.
- The court reviewed the BIA’s denial for abuse of discretion and denied the petition for review; Judge Pregerson dissented on humanitarian and equity grounds.
Issues
| Issue | Petitioners' Argument | Government's Argument | Held |
|---|---|---|---|
| Timeliness of motion to reopen | Motion should be reopened due to materially changed country conditions in Indonesia | Motion untimely; no qualifying exception shown | Denied — motion untimely and exception not met |
| Material change in country conditions | Increased anti-Christian violence and inadequate government protection constitute qualitative change | Evidence not qualitatively different or showing systemic/pervasive violence | Denied — evidence insufficiently "qualitatively different" or pervasive |
| Individualized risk of persecution | Petitioners would be individually targeted as Christians and because of U.S. ties | Membership in disfavored group insufficient; no evidence of individualized targeting; U.S. ties not recognized social group and argument waived | Denied — no showing of individualized risk; U.S. ties claim waived or unsupported |
| Standard of review | N/A (petitioners seek reopening) | BIA decision reviewed for abuse of discretion | Court defers to BIA; no abuse of discretion found |
Key Cases Cited
- Najmabadi v. Holder, 597 F.3d 983 (9th Cir. 2010) (abuse-of-discretion review and requirement that new evidence be qualitatively different for reopening)
- Wakkary v. Holder, 558 F.3d 1049 (9th Cir. 2009) (membership in a disfavored group alone does not establish individualized risk)
- Singh v. INS, 134 F.3d 962 (9th Cir. 1998) (petitioner must show predicament appreciably different from fellow nationals)
- Kotasz v. INS, 31 F.3d 847 (9th Cir. 1994) (same principle on individualized risk comparison)
- Delgado-Ortiz v. Holder, 600 F.3d 1148 (9th Cir. 2010) (declining to recognize American ties alone as a social group)
- Martinez-Serrano v. INS, 94 F.3d 1256 (9th Cir. 1996) (issues not argued in opening brief are waived)
- Tampubolon v. Holder, 610 F.3d 1056 (9th Cir. 2010) (recognition that Christians in Indonesia are a disfavored group)
- Salim v. Lynch, 831 F.3d 1133 (9th Cir. 2016) (discussion of violence and official acquiescence toward persecution of Christians in Indonesia)