Indradjaja v. Holder, 737 F.3d 212

Background

Ellya Indradjaja, an ethnic Chinese Christian from Indonesia, applied for asylum after overstaying a B-2 visa, alleging past harassment and a well-founded fear of future persecution for religion and ethnicity.
The IJ found Indradjaja credible but denied relief, concluding her experiences were discrimination, not past persecution, and that attacks on Christians were episodic not part of a systemic pattern.
The BIA affirmed the denial on appeal in 2011; Indradjaja did not seek further review but timely moved to reopen in 2011 based on changed country conditions showing increased violence against Chinese Christians.
The motion to reopen relied heavily on an expert affidavit by Dr. Jeffrey Winters and multiple country-condition reports and news articles documenting increased attacks and government failure to protect religious minorities.
A single-member BIA denied the motion in 2012 on two grounds: (1) the submissions were not accompanied by a sworn statement from Indradjaja, so the BIA could not be sure who advanced the claims; and (2) it gave Dr. Winters’s affidavit little weight because he did not attach the primary sources he relied on, and found the other documents insufficient to show materially worsened conditions.
The Second Circuit granted review and found the BIA abused its discretion by imposing these unarticulated requirements and by discounting the expert affidavit without prior notice or opportunity to cure; the BIA’s decision was vacated and remanded.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether BIA may reject motion to reopen because petitioner did not submit a sworn affidavit	Indradjaja: regulation requires affidavits or other evidentiary material; petitioner submitted expert affidavit and country reports so no personal sworn statement was required	Government: petitioner needed an affidavit explaining how new evidence relates to her, implying a petitioner affidavit was necessary	Court: BIA abused discretion; no rule requires petitioner’s sworn statement where expert affidavit and documentary evidence show relevance
Whether BIA may discount an expert affidavit because the expert did not attach primary source copies	Indradjaja: expert affidavit adequately described sources and methodology; no notice required to attach sources	Government: BIA reasonably required sources to independently assess expert’s conclusions	Court: BIA abused discretion; no rule required attaching underlying sources and authorities (including FRE 703 analogies) do not demand source copies; BIA should have requested sources if needed
Whether the newly submitted country-condition evidence demonstrated materially changed conditions to warrant reopening	Indradjaja: reports and expert show increased, systematic attacks on Christians relevant to her pattern-or-practice claim	Government: much of the submitted material was similar to evidence already considered and some articles (re: Ahmadiyya) were irrelevant	Court: After improperly discounting the expert affidavit, BIA’s summary rejection of other documents lacked adequate consideration and remand required for full evaluation
Whether BIA properly treated some arguments as untimely motions to reconsider	Indradjaja: challenged BIA’s prior denial of past persecution	BIA/Government: petitioner’s attempt to revisit past findings was untimely and forfeited	Court: Petitioner did not challenge BIA’s characterization on appeal and thus forfeited that argument; court did not reach merits

Key Cases Cited

Qin Wen Zheng v. Gonzales, 500 F.3d 143 (2d Cir. 2007) (standard: review denial of motion to reopen for abuse of discretion)
Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83 (2d Cir. 2001) (BIA decision must provide rational explanation; arbitrary or capricious standards)
Ming Shi Xue v. BIA, 439 F.3d 111 (2d Cir. 2006) (IJs/BIA must request additional information when necessary to adjudicate claims fairly)
Yuanliang Liu v. U.S. Dep’t of Justice, 455 F.3d 106 (2d Cir. 2006) (importance of fair and reasoned adjudication in deportation/asylum cases)
Wei Guang Wang v. BIA, 437 F.3d 270 (2d Cir. 2006) (BIA must demonstrate consideration of an immigrant’s evidence)
Poradisova v. Gonzales, 420 F.3d 70 (2d Cir. 2005) (IJ/BIA duty to explicitly consider country-conditions evidence bearing on claim)
Iacobelli Constr., Inc. v. County of Monroe, 32 F.3d 19 (2d Cir. 1994) (expert affidavit may state facts on which opinion is based without attaching supporting data)
Padilla v. Kentucky, 559 U.S. 356 (U.S. 2010) (noting severe consequences of deportation)