Kurniawan Salim v. Loretta E. Lynch
2016 U.S. App. LEXIS 13883
| 9th Cir. | 2016Background
- Salim, an Indonesian national, overstayed his U.S. visa and applied for asylum/withholding/CAT in 2003; IJ denied relief as untimely in 2006 and BIA affirmed in 2007; Ninth Circuit remanded once and later upheld the BIA in 2012.
- After the 2006 hearing Salim converted from Buddhism to Catholicism and in 2013 moved to reopen based on changed country conditions for Christians in Indonesia.
- Salim submitted over 100 pages of country-condition reports, a sworn declaration expressing fear of return as a Christian, and a 2013 letter from his sister in Jakarta describing threats to their church and family.
- The BIA denied the 2013 motion to reopen as untimely, calling the new evidence largely cumulative of 2006 filings and noting Salim had previously identified as Buddhist.
- The Ninth Circuit reviews BIA denials of motions to reopen for abuse of discretion and legal questions de novo; it found legal and factual error in the BIA’s analysis.
Issues
| Issue | Salim's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether motion to reopen falls within the changed-country-conditions exception to the 90-day filing rule | Salim: evidence shows materially changed, worsening conditions for Christians since 2006 supporting reopening | BIA: evidence is cumulative of 2006 record and thus untimely | Court: BIA abused discretion; evidence is qualitatively different and shows changed conditions, so exception applies |
| Whether BIA properly compared new evidence to prior record | Salim: comparison must focus on country conditions at two times, not on overlap with prior filings | BIA: treated new submissions as cumulative of prior evidence | Court: legal error—must compare conditions at prior hearing and at motion, not whether topics overlap with prior claim |
| Whether Salim made a prima facie showing of individualized risk as a Christian | Salim: conversion + country reports + sister’s letter + declaration show reasonable likelihood of persecution | Government: no evidence specific to Salim; credibility questioned because prior Buddhism | Court: Salim made prima facie case; BIA failed to apply disfavored-group analysis and improperly discounted personal statements; credibility attack inappropriate on motion to reopen |
| Whether BIA’s credibility concern about prior Buddhism justified denial | Salim: conversion is supported by his statements and declaration; credibility findings inappropriate on reopen | Government: points to inconsistency in filings | Court: credibility determinations on motions to reopen are inappropriate absent inherently unbelievable evidence; BIA erred |
Key Cases Cited
- Wakkary v. Holder, 558 F.3d 1049 (9th Cir.) (membership in a disfavored group is relevant to withholding)
- Chandra v. Holder, 751 F.3d 1034 (9th Cir.) (changed personal circumstances, including conversion, can make changed-country-conditions material)
- Malty v. Ashcroft, 381 F.3d 942 (9th Cir.) (motion to reopen granted where country reports plus personal declaration showed qualitative change)
- INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) (asylum standard can be satisfied by a one-in-ten chance of persecution)
- Tampubolon v. Holder, 610 F.3d 1056 (9th Cir.) (Indonesian Christians recognized as subject to violence and discrimination)
- Bhasin v. Gonzales, 423 F.3d 977 (9th Cir.) (standards of review for BIA factual and legal determinations)
- Ordonez v. INS, 345 F.3d 777 (9th Cir.) (motion to reopen need only establish a prima facie case)