Sihotang v. Sessions, 900 F.3d 46

Background

Petitioner Indra Sihotang, an Indonesian evangelical Christian, was ordered removed in 2008 after conceding removability and losing his asylum/withholding/CAT claims; he did not seek judicial review then.
After the voluntary departure period expired, ICE placed him on a renewable order of supervision for nearly ten years; he lived and worked in the U.S., married, and had U.S.-born children (one disabled).
In September 2017 ICE detained Sihotang when he came to renew supervision; while detained he filed an untimely motion to reopen (Oct. 12, 2017) asserting materially changed country conditions in Indonesia.
The motion relied on new evidence: news articles, State Department country reports, and a 66-page affidavit from Dr. Jeffrey Winters describing increased Islamist influence, rising vigilante attacks, government tolerance or complicity, and particular risks to evangelical Christians who proselytize.
The BIA denied the motion in a brief opinion, concluding the evidence showed only a continuation of prior conditions and noting that many Christians still live in Indonesia without harm; it did not analyze prima facie eligibility and did not address the petitioner’s evangelical/proselytizing status.
The First Circuit granted review, found the BIA abused its discretion by failing to consider key facts about evangelical proselytizing and deteriorating conditions, vacated the denial, and remanded for full consideration.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether petitioner submitted new, material evidence of changed country conditions to overcome time-bar bar to reopen	Sihotang: new documentary evidence and expert affidavit show material deterioration in conditions for Christians—especially evangelical proselytizers—since 2006	Gov: evidence shows only a continuation of existing conditions; similar to prior First Circuit denials	Court: BIA abused discretion by not assessing distinction for evangelical proselytizers and failing to consider whether changes were material; remand required
Whether BIA considered petitioner’s specific religious practice (evangelical proselytizing) in its discretionary review	Sihotang: BIA ignored central fact that he publicly proselytizes, increasing his risk	Gov: framed case as general Indonesian Christian condition; relied on many Christians living without harm	Held: BIA failed to address evangelical/proselytizing status—a significant factor—constituting abuse of discretion
Whether the BIA conducted required comparison of evidence at merits hearing (2006) and motion (2017)	Sihotang: comparison shows intensifying Islamist influence, increased vigilante violence, government tolerance, and new laws/fatwas raising risk	Gov: no material change shown; prior precedent supports denial	Held: record may show material deterioration over 2006–2017; BIA did not properly analyze that comparison; remand warranted
Whether BIA’s error was harmless without addressing prima facie eligibility for relief	Sihotang: BIA didn’t reach prima facie stage because it misapplied or ignored critical facts	Gov: BIA’s conclusion sufficient; no reversible error	Held: Error not harmless; BIA failed to analyze significant evidence and omitted required determinations; remand for full consideration

Key Cases Cited

Bbale v. Lynch, 840 F.3d 63 (1st Cir. 2016) (motions to reopen are disfavored; courts review BIA abuse of discretion)
Murillo-Robles v. Lynch, 839 F.3d 88 (1st Cir. 2016) (BIA may abuse discretion by neglecting significant factors)
Sánchez-Romero v. Sessions, 865 F.3d 43 (1st Cir. 2017) (compare country-conditions evidence at merits hearing and motion to reopen)
Xin Qiang Liu v. Lynch, 802 F.3d 69 (1st Cir. 2015) (standard for assessing new country-conditions evidence)
Perez v. Holder, 740 F.3d 57 (1st Cir. 2014) (requirement to introduce new, material evidence and make prima facie showing)
Sugiarto v. Holder, 761 F.3d 102 (1st Cir. 2014) (denial where petitioner failed to show material change)
Simarmata v. Holder, 752 F.3d 79 (1st Cir. 2014) (similar country-conditions denial)
Henry v. INS, 74 F.3d 1 (1st Cir. 1996) (articulating ways BIA may abuse discretion)
Pulisir v. Mukasey, 524 F.3d 302 (1st Cir. 2008) (State Department country reports generally authoritative)