Salim v. Holder
728 F.3d 718
| 7th Cir. | 2013Background
- Salim is an Indonesian citizen of Chinese ethnicity and Christian faith who fled in 2000 seeking asylum, withholding of removal, and CAT relief based on persecution and discrimination for ethnicity and religion.
- IJ denied asylum and withholding, finding no past persecution or well-founded fear; Salim conceded removability and renewed his asylum claim.
- Salim moved to reopen; IJ denied the motion; BIA dismissed the appeal for lack of new, previously unavailable evidence and for reliance on out-of-circuit law.
- Salim filed a petition for review of the BIA denial of his motion to reopen; the Seventh Circuit upheld the BIA, finding no abuse of discretion.
- Key issue is whether Salim presented new, material evidence or whether any applicable new legal standard would have altered the outcome; the court concludes the BIA did not abuse its discretion.
- The court discusses whether Tampubolon’s Ninth Circuit disfavored-group framework constitutes new evidence or a change in law, and ultimately rejects applying a disfavored-group approach to Salim’s case.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the motion to reopen was improper for lack of new evidence | Salim | Salim presented news articles; most dated before hearing; not new evidence | No abuse of discretion; evidence not new or material |
| Whether Tampubolon constitutes new evidence or a change in law | Salim | Tampubolon is not new evidence and law change; not applicable | Not applicable; Tampubolon not helpful and not new evidence |
| Whether the Ninth Circuit disfavored-group approach should apply | Salim urges disfavored-group approach to show individualized risk | Seventh Circuit rejects disfavored-group approach in withholding context | Disfavored-group approach not adopted; Salim still fails to show individualized risk |
Key Cases Cited
- Kucana v. Holder, 603 F.3d 394 (7th Cir. 2010) (limit on new evidence in a motion to reopen; evidence must be unavailable earlier)
- Ingman-toro v. Mukasey, 550 F.3d 646 (7th Cir. 2008) (private acts do not constitute persecution absent government complicity or inaction)
- Tampubolon v. Holder, 610 F.3d 1056 (9th Cir. 2010) (disfavored group analysis; post-hearing development; not controlling for Seventh Circuit)
- Wakkary v. Holder, 558 F.3d 1049 (9th Cir. 2009) (disfavored-group framework discussed in context of individual risk)
- Sael v. Ashcroft, 386 F.3d 922 (9th Cir. 2004) (disfavored-group approach used as safety net when pattern or practice not shown)
- Kho v. Keisler, 505 F.3d 50 (1st Cir. 2007) (group membership considered within regulatory framework)
- Kotasz v. INS, 31 F.3d 847 (9th Cir. 1994) (early recognition of disfavored groups in asylum)
- Bhatt v. Reno, 172 F.3d 978 (7th Cir. 1999) (require specific, detailed facts for individualized fear)