Sutarsim v. Barr, 957 F.3d 311

Background

Petitioner Susan Sutarsim (with derivative claims for husband Rudijanto Lukman and two daughters) are Indonesian Chinese Buddhists who entered the U.S. in 2008 and applied for asylum, withholding, and CAT protection based on ethnicity and religion.
IJ found Sutarsim and Lukman credible but denied relief in 2011, concluding prior incidents (1998 riots, 2007 attack, 2008 demonstrations) did not amount to past persecution or a pattern of government-condoned persecution; BIA affirmed in 2012.
Sutarsim pursued motions to reconsider and appeals; administrative remedies were exhausted by 2015 after BIA rulings and an IJ reaffirmation.
Two daughters participated in ICE’s Operation Indonesian Surrender (2016); in 2017 ICE denied further stays and ordered removal for them.
In April 2018 Sutarsim filed an untimely motion to reopen, invoking the changed-circumstances exception based on alleged escalations in violence against religious minorities; BIA denied the motion as untimely and found the new evidence showed worsening conditions primarily for Christians, not Chinese Buddhists.
First Circuit denied the petition for review, holding the BIA did not abuse its discretion in refusing to reopen proceedings.

Issues

Issue	Sutarsim's Argument	Government's Argument	Held
Timeliness / changed-country-conditions exception to 90-day rule	Evidence shows materially changed conditions in Indonesia (escalating violence vs. religious minorities) excusing late filing	Evidence does not show material change for Chinese Buddhists; new evidence mirrors pre-2011 conditions	BIA did not abuse discretion; petitioner failed to show material changed conditions for Chinese Buddhists
Alleged disparate treatment (BIA reopened other, similar cases)	BIA reopened multiple Operation Indonesian Surrender cases, so denying her motion was arbitrary and capricious	Those reopened cases involved Chinese Christians with evidence specific to Christians or were affected by parallel litigation/injunctions	Court found BIA’s differential outcomes reasonable given factual distinctions and procedural contexts
Reliance on Sihotang precedent	Post-filing Sihotang requires reopening because conditions worsened generally for religious minorities	Sihotang concerned evangelical Christians with evidence specific to proselytizing risks; it does not compel reopening for Buddhists absent evidence	Sihotang is distinguishable; petitioner produced no specific evidence of heightened risk to Buddhists
BIA’s factual error about a missing asylum application	BIA misstated that no new asylum application accompanied the motion, requiring remand	The attached application contained no substantive new statement; omission did not affect outcome	Error was harmless; the application added nothing that would alter the result

Key Cases Cited

Bbale v. Lynch, 840 F.3d 63 (1st Cir. 2016) (motions to reopen disfavored because of finality and expedition concerns)
Roberts v. Gonzales, 422 F.3d 33 (1st Cir. 2005) (standard of review for motions to reopen)
Raza v. Gonzales, 484 F.3d 125 (1st Cir. 2007) (BIA abuse-of-discretion standard described)
Hasan v. Holder, 673 F.3d 26 (1st Cir. 2012) (acceptance of BIA factual findings if supported by substantial evidence)
Guzman v. INS, 327 F.3d 11 (1st Cir. 2003) (review standards for immigration findings)
Xin Qiang Liu v. Lynch, 802 F.3d 69 (1st Cir. 2015) (changed-country-conditions exception to filing deadline)
Nantume v. Barr, 931 F.3d 35 (1st Cir. 2019) (materiality and evidentiary requirements for changed-conditions motions to reopen)
Garcia-Aguilar v. Whitaker, 913 F.3d 215 (1st Cir. 2019) (supporting authority on evidence unavailable at merits hearing)
Chen v. Lynch, 825 F.3d 83 (1st Cir. 2016) (requirement to show prima facie eligibility for substantive relief on reopening)
Sihotang v. Sessions, 900 F.3d 46 (1st Cir. 2018) (distinguished; concerned evangelical Christians and public proselytizing risks)
Devitri v. Cronen, 289 F. Supp. 3d 287 (D. Mass. 2018) (district-court litigation tied to some Operation Indonesian Surrender reopenings)