18 F.4th 1090
9th Cir.2021Background
- Petitioners Henri Nababan and Harlena Rose Silalahi are Indonesian nationals and members/leaders of the Seventh‑day Adventist (SDA) Church who overstayed U.S. visas and applied for asylum, withholding of removal, and CAT relief based on fear of persecution for proselytizing.
- An IJ denied relief in 2009; the BIA dismissed the appeal and concluded Petitioners had not shown past persecution or individualized risk beyond generalized anti‑Christian violence; this court affirmed in 2012 and again denied review of a 2012 motion to reopen in 2016.
- In 2018 Petitioners filed a second motion to reopen, submitting evidence of increased religious intolerance since 2016 (including the Ahok blasphemy prosecutions, attacks on an SDA church, an affidavit from Petitioners’ father, and expert reports) and noting new church leadership roles that they say heighten their risk.
- The BIA denied the second motion as untimely under the changed‑country‑conditions exception, treating the evidence as continuing or sporadic anti‑Christian incidents and not addressing whether evangelical Christians (or proselytizers) face a distinct, heightened risk.
- The Ninth Circuit held the BIA committed legal error by failing to assess Petitioners’ individualized risk as evangelical Christians and remanded for the BIA to determine whether country conditions materially changed for evangelical Christians and, if so, to consider Petitioners’ leadership roles and prima facie eligibility for asylum, withholding, and CAT relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Did the BIA abuse its discretion by failing to assess Petitioners’ individualized risk as evangelical Christians when denying the motion to reopen? | Nababan: BIA ignored evidence showing evangelical/proselytizing Christians face heightened, distinct risk; merits remand. | Government/BIA: BIA considered Christianity and SDA status and reasonably treated evidence as continuation of prior conditions. | Held: BIA committed legal error by not assessing individualized evangelical risk; remand required. |
| 2) Do Petitioners’ 2016–2018 materials show materially changed country conditions to excuse the untimely filing? | Nababan: Ahok case, attacks on churches, expert affidavits, and recent incidents show escalation since 2009. | BIA: Evidence reflects sporadic, ongoing intolerance not a material change; Petitioners’ new roles are personal changes. | Held: Court did not resolve merits; ordered BIA on remand to assess changed conditions specifically for evangelical Christians. |
| 3) Are Petitioners’ new church leadership roles relevant to reopening? | Nababan: Leadership increases visibility and risk from vigilante or blasphemy prosecutions. | BIA: Leadership roles are personal circumstances; only relevant if tied to changed country conditions. | Held: On remand BIA should consider leadership roles only insofar as they relate to any materially changed conditions. |
| 4) Standard of review: Was the BIA’s denial an abuse of discretion? | Nababan: BIA’s failure to analyze evangelical subgroup was legal error amounting to abuse of discretion. | Government: BIA properly exercised broad discretion and weighed evidence; no abuse. | Held: Court reviews for abuse of discretion and found legal error requiring vacatur and remand. |
Key Cases Cited
- Najmabadi v. Holder, 597 F.3d 983 (9th Cir. 2010) (abuse‑of‑discretion standard for BIA denial of motion to reopen)
- Gonzalez‑Caraveo v. Sessions, 882 F.3d 885 (9th Cir. 2018) (review: legal questions de novo, factual findings for substantial evidence)
- Bhasin v. Gonzales, 423 F.3d 977 (9th Cir. 2005) (BIA must show proper consideration of all factors)
- Salim v. Lynch, 831 F.3d 1133 (9th Cir. 2016) (BIA errs when it fails to analyze individualized threat within a disfavored group)
- Tampubolon v. Holder, 610 F.3d 1056 (9th Cir. 2010) (Indonesian Christians are a disfavored group)
- Sihotang v. Sessions, 900 F.3d 46 (1st Cir. 2018) (evangelical/proselytizing Christians may face distinct risks; remand where BIA failed to address that subgroup)
- Liem v. Attorney General, 921 F.3d 388 (3d Cir. 2019) (similar recognition that public/proselytizing practice can create unique risk for asylum claims)
- Rodriguez v. Garland, 990 F.3d 1205 (9th Cir. 2021) (changes in personal circumstances matter only if tied to changed country conditions)
- Agonafer v. Sessions, 859 F.3d 1198 (9th Cir. 2017) (on remand BIA should assess prima facie eligibility for asylum/withholding/CAT when reopening granted)