HENRI NABABAN; HARLENA ROSE SILALAHI v. MERRICK B. GARLAND, Attorney General
No. 18-72548
United States Court of Appeals for the Ninth Circuit
November 23, 2021
Agency Nos. A078-020-176, A096-349-826
OPINION
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted April 13, 2021 Pasadena, California
Filed November 23, 2021
Before: Richard A. Paez and Lawrence VanDyke, Circuit Judges, and Sharon L. Gleason,* District Judge.
Opinion by Judge Gleason; Dissent by Judge VanDyke
Immigration
Granting Henri Nababan and Harlena Rose Silalahi‘s petition for review of an order of the Board of Immigration Appeals denying their second motion to reopen their applications for asylum, withholding of removal, and relief under the Convention Against Torture, vacating the order of removal, and remanding, the panel held that the Board erred by failing to assess Petitioners’ individualized risk of persecution in Indonesia due to their identity as evangelical Christians.
The panel explained that the Board correctly recognized that Christians in Indonesia are a disfavored group, but it failed to account for Petitioners’ status as evangelical Christians or the evidence they presented indicating that evangelical Christians have experienced a particular increase in violence and persecution, beyond that experienced by Indonesian Christians in general.
The panel remanded for the Board to assess whether country conditions in Indonesia have materially changed for evangelical Christians in particular, as distinct from Christians in general. Moreover, the panel instructed that if the Board finds materially changed country conditions, it should consider the impact of Petitioners’ recent leadership roles in their church, which the Board previously characterized as changes in personal circumstances, and determine whether Petitioners have established prima facie
Dissenting, Judge VanDyke wrote that the majority remands to the Board due to the Board‘s purported failure to assess Petitioners’ individualized risk as “evangelical Christians” within the broader group of Indonesian Christians generally, but in doing so, clings to a myopic focus on the phrase “evangelical Christians,” which the record reveals is at most mere semantics and a misrepresentation of the Board‘s decision. Judge VanDyke wrote that simply because the Board did not ritualistically chant the precise phrase “evangelical Christians” in its decision cannot be a reason to ignore that the Board appropriately considered the particular risk that Petitioners might face as Christians who evangelize. Moreover, Judge VanDyke wrote that the majority relies on an expert affidavit that fails to provide any evidence or analysis showing that “evangelical Christians” are treated any differently in Indonesia than Christians generally—or, for that matter, all religious minorities. Judge VanDyke explained that once one strips away the majority‘s magic-word requirement, what‘s left is the question of whether Petitioners have shown enough of a change in country conditions to surmount the high bar for reopening. Judge VanDyke wrote that the Board addressed this exact question, in such a way that not even the majority can pretend is wrong without inventing some undefined group the Board supposedly failed to consider.
Howard R. Davis (argued), Law Office of Howard R. Davis, Glendale, California, for Petitioner.
Remi da Rocha-Afodu (argued), Trial Attorney; Mary Jane Cadaux, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.
OPINION
GLEASON, District Judge:
Henri Nababan and Harlena Rose Silalahi (Petitioners) petition for review of an order of the Board of Immigration Appeals (BIA) denying their second motion to reopen their applications for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). Exercising jurisdiction under
I
Petitioners are Indonesian nationals and members of the Seventh Day Adventist (SDA) Church. Nababan was admitted to the United States in December 1999 on a temporary nonimmigration visa. He remained in the country beyond the authorized time period without permission. Silalahi was admitted to the United States in February 2002 on a temporary nonimmigrant visa and also remained beyond the authorized period without permission. Petitioners married each other in 2003.
On April 1, 2009, the IJ issued an oral decision denying Petitioners’ applications and ordering them removed to Indonesia. The IJ denied Silalahi‘s application for asylum because she had “failed to establish past persecution [or] the likelihood of future persecution.” The IJ acknowledged that Petitioners were members of a disfavored group in Indonesia as Christians but ruled that they had not demonstrated that their fear of harm was distinct from that of any other Christians in Indonesia. Additionally, the IJ denied both Petitioners relief under the CAT because they did not prove that it was more likely than not that they would face torture in Indonesia.
The BIA dismissed Petitioners’ timely appeal on April 30, 2010. With regard to the withholding of removal claims, the BIA found that the incidents of harassment and discrimination experienced by Petitioners in Indonesia did not constitute past persecution. The BIA also found that Petitioners did not establish a “well-founded fear of future persecution,” stating that the record evidence did “not document widespread mistreatment of Christians“; rather,
Petitioners then sought review from this court. The court denied the petition in September 2012. Nababan v. Holder, 479 F. App‘x 118 (9th Cir. 2012) (unpublished). The court held that substantial evidence supported the BIA‘s conclusions that “petitioners did not establish their experiences in Indonesia rose to the level of persecution” and that, “even under a disfavored group analysis, petitioners ha[d] not demonstrated sufficient individualized risk of persecution to establish eligibility for asylum or withholding of removal.” Id. at *1. The court also held that substantial evidence supported the BIA‘s rejection of Petitioners’ CAT claims. Id.
On November 21, 2012, Petitioners filed their first motion to reopen to reapply for asylum, withholding of removal, and protection under the CAT based on changed country conditions in Indonesia. Petitioners claimed that “[a]nti-Christian sentiment ha[d] increased in the recent months.” Petitioners also submitted evidence of continuing religious intolerance and evidence that Indonesian government authorities had not always responded to such incidents.
Petitioners then again sought review from this court, and we again denied review. Nababan v. Lynch, 660 F. App‘x 524 (9th Cir. 2016) (unpublished). The court held that the “BIA did not abuse its discretion in finding that Petitioners failed to establish materially changed circumstances in Indonesia to qualify for an exception to the time limitations for a motion to reopen.” Id. at 525. As the court explained, “[t]he BIA recognized that religious intolerance in Indonesia is on-going” but nonetheless “concluded that the violence against Christians was neither systemic nor pervasive.” Id.
Petitioners included an affidavit from Jeffrey A. Winters, Ph.D, an expert in the society, economy, and politics of Indonesia. Dr. Winters explained that “radical Islam has gained significantly in strength in Indonesia since the end of 2012, and [] from that date forward the level of violence and intolerance directed at religious minorities has increased at a shocking rate.” He acknowledged that all non-Muslims are under threat in Indonesia as intolerance grows and violence against religious minorities becomes more widespread. Since Petitioners are evangelical Christians, however, he opined that they are at a particularly heightened risk of such violence “because a core part of their faith and practice is to go out into their communities and ‘spread the Gospel,’ which in Indonesia is deemed to be predatory proselytizing.” Another expert, Professor Mark Cammack, J.D., stressed the heightened risk of vigilante violence that Petitioners would face if they were compelled to return to Indonesia and engaged in evangelism in accordance with their beliefs.2
After identifying Petitioners’ evidence, the BIA determined that Petitioners’ “recent leadership roles in their church are changes in their personal circumstances rather than a change in circumstances or conditions in Indonesia.” In comparing the conditions at the time of the 2009 removal hearing with those at the time of the most recent motion—
The BIA ultimately determined that Petitioners “have not met their ‘heavy burden’ required for reopening under the ‘changed country conditions exception’ to the filing restrictions.” Rather, the BIA held that Petitioners had only offered “media articles and statements reflecting difficulties faced by Christians in Indonesia.” The BIA further stated that Petitioners “have not shown that they are similarly situated to the well-known politician [Ahok] who was subjected to blasphemy charges.” Lastly, the BIA declined to exercise its limited sua sponte authority to reopen the proceedings. Accordingly, the BIA denied Petitioners’ motion to reopen. This timely petition for review followed.
II
The Court reviews the BIA‘s denial of a motion to reopen for abuse of discretion. Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). The BIA abuses its discretion when its decision is arbitrary, irrational or contrary to law. Id. We review the BIA‘s determination of purely legal questions de novo and the BIA‘s factual findings for substantial evidence. Gonzalez-Caraveo v. Sessions, 882 F.3d 885, 889, 895 (9th Cir. 2018). The BIA “must show proper consideration of all factors.” Bhasin v. Gonzales, 423 F.3d 977, 983 (9th Cir. 2005). The BIA “commit[s] legal error when it fail[s] to analyze [a petitioner‘s] individualized threat of persecution” as part of
III
Generally, a party wishing to file a motion to reopen must do so within ninety days.
The BIA correctly recognized that Christians in Indonesia are a disfavored group. See Tampubolon v. Holder, 610 F.3d 1056, 1058 (9th Cir. 2010). It failed, however, to account for Petitioners’ status as evangelical Christians or the evidence they presented indicating that evangelical Christians have experienced a particular increase in violence and persecution, beyond that experienced by Indonesian Christians in general. In recounting the evidence Petitioners submitted with their motion to reopen, the BIA did note that Petitioners were members of the SDA Church, in which a key tenet of their faith is spreading the Gospel. But that appears to be the full extent of the BIA‘s consideration of Petitioners’ evangelical faith. The BIA‘s analysis repeatedly described the disfavored group at issue as the broader group of “Christians in Indonesia.” For example, the BIA cited our court‘s precedent to explain that “prior to [Petitioners‘] removal hearing, Christian Indonesians were determined to be members of a ‘disfavored group.‘” See Sael v. Ashcroft, 386 F.3d 922, 927 (9th Cir. 2004). Moreover, despite Petitioners’ repeated references to “evangelical Christians” and proselytizing activities in their motion, the BIA did not
We note that other circuits have recognized that the BIA should consider the unique risks faced by evangelical Christians and Christians who publicly proselytize as distinct from Christians in Indonesia as a general group.3 In Sihotang, 900 F.3d at 53, the First Circuit explained that its prior decisions rejecting claims of changed country conditions for Christians in Indonesia did not dictate the same result for evangelical Christians, because their “religious beliefs ... and therefore their experiences with religious intolerance [] were different in kind, not just in degree.” Id. at 53. The court noted that the record “reflected[ed] a ramping-up of religious intolerance ... that a reasonable observer might find uniquely problematic for evangelical Christians” due to the “public nature” of their faith. Id. Similarly, the Third Circuit cited to Sihotang in Liem v. Attorney General, 921 F.3d 388, 400 (3d Cir. 2019), explaining that an “increase in religious intolerance in Indonesia” could be especially problematic for the petitioner because as a minister in his community, he was practicing his Christian faith publicly. Liem, 921 F.3d at 400. Both the First and Third Circuits granted the petitions for review and remanded to the BIA for proper consideration
The dissent contends that the majority “faults the BIA for not addressing something [i.e., Petitioners’ evangelical faith] that was never actually presented to the BIA[.]” But that “something” was clearly presented to the BIA in Petitioners’ motion to reopen. Petitioners moved to reopen principally on the basis that they faced a unique risk of persecution as evangelical Christians for whom proselytizing is a religious obligation, distinct from the larger disfavored group of Christians in Indonesia.
For the aforementioned reasons, we hold that the BIA committed legal error because it did not assess the individualized risk of persecution that Petitioners face due to their identity as evangelical Christians. Accordingly, we grant the petition for review and remand to the BIA. On remand, the BIA should assess whether country conditions in Indonesia have materially changed for evangelical Christians in particular, as distinct from Christians in general. If the BIA finds materially changed country conditions, the BIA should consider the impact of Petitioners’ recent leadership roles in their church, which the BIA previously characterized as changes in personal circumstances, see Rodriguez v. Garland, 990 F.3d 1205, 1210–11 (9th Cir. 2021) (“Changes in a petitioner‘s personal circumstances are only relevant where those changes are related to the changed country conditions that form the basis for the motion to reopen.“), and determine whether Petitioners have established prima facie eligibility for asylum, withholding of removal, and relief under the CAT, see Agonafer v. Sessions, 859 F.3d 1198, 1204 (9th Cir. 2017).
VANDYKE, Circuit Judge, dissenting:
Our circuit‘s immigration jurisprudence is a perpetually embarrassing illustration of how tough it is for judges to keep to our proper role, which Congress has narrowly circumscribed, tasking us with monitoring an area of law mostly assigned to the executive branch of government. The majority‘s unwarranted reversal in this case is the latest specimen of our playing BIA-for-a-day instead of genuinely deferring to the agency‘s decisions.
Often, I‘m baffled why my colleagues strain to prevent removal in some of the cases that come before us, particularly where the petitioners have a disturbing criminal history.1 But in this case, it‘s easy to see why one would
In this case, the majority remands to the BIA due to the BIA‘s purported failure to assess Petitioners’ individualized risk as “evangelical Christians” within the broader group of Indonesian Christians generally. But in doing so, the majority relies on an expert affidavit that fails to provide any evidence or analysis showing that “evangelical Christians” are treated any differently in Indonesia than Christians generally—or, for that matter, all religious minorities. A review of that expert affidavit, Petitioners’ own arguments, and the actual text of the BIA‘s opinion crumples the majority‘s rationale and shows how its holding is predicated on a distinction without a difference. To understand how far the majority strays to obtain its desired result, it is helpful to review this case in context—where Petitioners have, for over a decade, consistently characterized themselves as Seventh Day Adventist (SDA) Christians who, like most Christians, evangelize.
Petitioners first sought relief from removal more than a decade ago in 2008. Before the IJ, Silalahi explained that they were SDAs who were “always... so terrified... [for] practicing our faith” in Indonesia. She particularly focused on the fact that they were “prevented [from] spreading the word or gospel to other people.” In Indonesia, she explained, it was dangerous for them to distribute pamphlets door-to-door “or spread the word to the world about Jesus.” The IJ determined, however, that Petitioners failed to show how their alleged past harm rose to the level of persecution or torture.
Petitioners appealed to the BIA and, in doing so, repeatedly emphasized their status as Christians who actively “proselytize.”2 They pointed to their leadership roles and active engagement within the SDA church, noting that Nababan was “very active in his [SDA] Church in California, as a deacon, an associate for young families, and in spreading the gospel.” And Silalahi was “in charge of the children‘s ministry and proselytizes as required by her religion.” They also argued that conditions had worsened in Indonesia since they left, pointing to increasing violence against Christians, efforts to drive out non-Muslims and
The BIA dismissed Petitioners’ appeal, concluding that their claims of harm for “Christians such as” Petitioners did not rise to the level of persecution or torture. A panel of our court summarily affirmed the BIA. Nababan v. Holder, 479 F. App‘x 118 (9th Cir. 2012).
In 2012, Petitioners moved to reopen their proceedings based in part on a claimed increase of “[a]nti-Christian sentiment” in Indonesia and “their family‘s Christian religion.” As evidence of the growth of the “anti-Christian[] climate,” Petitioners pointed to harassment against persons “seeking to convert Muslims to Christianity“—the paradigm of “evangelical activities.” Petitioners also referenced several other incidents of general “anti-Christian violence [that] has grown over time.”
The BIA denied Petitioners’ motion. It acknowledged Petitioners’ SDA affiliation but concluded that Petitioners failed to establish any material change of circumstances. Another panel majority of our court summarily affirmed the BIA, again. Nababan, 660 F. App‘x at 525.
Not too surprisingly, however, their arguments mirrored those made in their previous filings. Just like in their original appeal before the BIA almost a decade ago, Petitioners again pointed to their leadership roles within their SDA church and argued that they were afraid to return to Indonesia because of their active involvement within the SDA church. Although Petitioners now occupied different leadership roles—Nababan served as a Deacon and Church Elder and Silalahi served as a Deaconess—they did not explain how their different leadership roles resulted in any increased risk. Also, as in their original appeal before the BIA, Petitioners pointed to violence and harassment targeting Christians, the promotion of Sharia law, the rise in Islamic fundamentalism, the burning of churches—including SDA churches—and violent protests waged by Muslims. And throughout their motion, Petitioners alternated between referring to “evangelical Christians” and Christians who evangelize.
Petitioners submitted two expert affidavits in support of their second motion to reopen from Dr. Winters and Professor Mark Cammack. Both affidavits purported to address the “threats facing Indonesian evangelical Christians.” On close inspection, however, aside from their introductory and conclusory summaries, neither affidavit actually addressed how “evangelical Christians” as a group are situated any differently from just “Christians” generally in Indonesia—or, for that matter, any differently from all other religious minorities.
In the eighteen pages of his analysis, Dr. Winters summarized surveys that indicated a growing support of Islamic law, a 2013 Human Rights Watch report that evaluated “[a]buses [a]gainst [r]eligious [m]inorities,” the “growing trend of religious intolerance,” and attacks “against religious minorities such as the Ahmadis, Shia, Christians, and Bahai.” Notably, many of the incidents that Dr. Winters recounts in his report occurred around or before the time of Petitioners’ first motion to reopen, making them irrelevant to Petitioners’ required showing of materially “changed country conditions.” Dr. Winters also discussed the Indonesian government‘s treatment of religious minorities, the general awareness that “attacks on Ahmadis, Shiites and other minority groups will continue,” and 2013 and 2014 U.S. State Department reports that found that conditions were deteriorating for “religious minorities” in Indonesia. None of these reports specifically focused on Christians in general, much less “evangelical Christians.”
Dr. Winters also summarized several Indonesian news articles that, again, focused on “intolerance against religious minorities.” Dr. Winters then briefly described a visit to
Indonesia where he met with the U.S. Ambassador to discuss political Islam in Indonesia and “the serious threats these trends posed for the country‘s stability, and especially for vulnerable religious minorities.” His affidavit makes no reference to any of these discussions pertaining specifically to the harm that Christians, much less “evangelical Christians,” face in Indonesia.After summarizing various country and media reports that only focused on religious minorities, Dr. Winters asserted that the “deterioration in conditions has a strong and negative impact on Indonesia‘s non-Islamic citizens, but especially the Christian minority.” Then, at the very end of his affidavit, Dr. Winters stated that the danger Petitioners faced “as evangelical Christians is vastly higher now,” and that “religious intolerance in Indonesia is especially harsh against Christians who engage in proselytizing and converting fellow citizens—which is a central tenet and commitment of those of the evangelical faith.” Dr. Winters‘s treatment of “evangelical Christians” brings to mind Wendy‘s “Where‘s the Beef?” commercials: it‘s all “fluffy bun” and no burger. Other than his bare assertions at the beginning and end of his affidavit, there‘s simply nothing there when it comes to evidence or analysis of targeted persecution of “evangelical Christians” in Indonesia.3
The only thing Dr. Winters‘s treatment of “evangelical Christians” in his affidavit demonstrates is that he doesn‘t really consider them to be situated differently from any other
The BIA evaluated Petitioners’ arguments, expert affidavits, and supporting evidence, and denied their second motion to reopen. In its decision, it expressly acknowledged that Petitioners “have offered evidence that they are active members of the Seventh Day Adventist (SDA) Church, a tenet of which is to spread the Gospel.” Pursuant to both the common understanding and literal definition of the word “evangelize,” which means “preach[ing] the gospel,” the BIA therefore explicitly addressed the evangelical requirements of Petitioners’ SDA denomination.5
The BIA then proceeded with its analysis, where it noted that Protestantism—a subset of Christianity which encompasses the SDA church6—“received official recognition” in Indonesia since Petitioners’ last removal hearing in 2009. The BIA also considered “the evidence of attacks against Christian churches, including an SDA church, as well as evidence of the difficulties and obstacles faced by Christian congregations in general” (emphasis added). By considering the “SDA church” independently from “Christian congregations in general,” the BIA again demonstrated that it did, in fact, assess Petitioners’ alleged individualized risk as Christians who evangelize.
The BIA also evaluated a country report, evidence of demonstrations against the construction of an SDA church,
The BIA ultimately concluded, however, that Petitioners’ new leadership roles in the SDA denomination reflected a change in personal circumstances instead of materially changed conditions in Indonesia, and that the “evidence now before [it] . . . does not reflect materially changed conditions affecting [Petitioners]’ ‘individualized risk’ of persecution to warrant reopening.” Since the BIA explicitly acknowledged and evaluated: (1) the SDA church‘s evangelical nature; (2) Petitioners’ leadership roles in that church; (3) the documentary evidence pertaining to attacks against an SDA church, the experts’ statements “prepared specifically for this motion,” and blasphemy charges against a popular Indonesian politician, and (4) the portions of Petitioners’ brief specifically discussing the harm Petitioners feared due to their evangelical activities, the BIA‘s reference to Petitioners’ “individualized risk” clearly considered Petitioners’ claimed status as Christians who evangelized. Upon consideration of this evidence, the BIA determined that Petitioners did not meet their heavy burden
II.
Notwithstanding the BIA‘s thorough consideration over more than a decade of Petitioners’ status as Christians who evangelize, the majority now remands due to the BIA‘s purported failure to explicitly assess Petitioners’ risk as “evangelical Christians.” As explained, nobody—not Petitioners, not their experts, and none of the articles they provided—provided a stitch of evidence in support of Petitioners’ motion to reopen evincing that “evangelical Christians” as a separate group are exposed to a higher risk of persecution in Indonesia than Christians in general, or even religious minorities generally. Our court once again faults the BIA for not addressing something that was never actually presented to the BIA to address.7
The majority‘s emphasis on the term “evangelical Christian” is not just absurdly fussy, it‘s also inherently fuzzy. The majority latches onto the term, but never defines what it means. Does the majority mean that “evangelical Christians” are a subgroup of Christianity, akin to the commonly used distinction between, say, Catholics and Protestants? Or does the majority simply mean that “evangelical Christians” refers to any “Christians” who
The majority‘s reliance on Dr. Winters‘s affidavit also runs afoul of numerous courts that have determined that Dr. Winters‘s assertions could not overcome the BIA‘s broad discretion in denying Petitioners’ requested relief, especially given the BIA‘s reliance on other parts of the record that did not support Dr. Winters‘s conclusion—just as the BIA did here.10 Indeed, at least one of our sister
The majority ignores all this, instead selectively quoting one phrase from the beginning of Dr. Winters‘s affidavit. To the extent that Dr. Winters‘s discussion of religious minorities in general could be interpreted as necessarily extending to evangelical Christians—which would be the only explanation for relying on Dr. Winters‘s otherwise unsupported statement quoted by the majority—well, then, we‘re back at square one. If evangelical Christians are persecuted like any other religious minorities, then the majority has no basis to draw some ephemeral distinction between Christians and evangelical Christians as its sole justification for remanding to the BIA. The majority attempts to distinguish evangelical Christians as some sort of separate, undefined sub-group of Christianity based on an expert affidavit that spends 18 pages demolishing that distinction.
The majority‘s misplaced reliance on Dr. Winters‘s affidavit highlights a bigger problem in this court—which is overturning a BIA decision on an abuse of discretion standard based on an expert report that does not actually demonstrate what the majority asserts. See, e.g., Bautista v. Barr, 822 F. App‘x 535, 537 (9th Cir. 2020) (VanDyke, J., dissenting in part and concurring in part). Simply citing an
But not today, apparently. The majority clings to a myopic focus on the phrase “evangelical Christians,” which the record reveals is at most mere semantics and a misrepresentation of the BIA‘s decision. Simply because the BIA did not ritualistically chant the precise phrase “evangelical Christians” in its decision cannot be a reason to ignore that the BIA appropriately considered the particular risk that Petitioners might face as Christians who evangelize.
Once we strip away the majority‘s magic-word requirement, we‘re left with the question of whether Petitioners have shown enough of a change in country conditions to surmount the high bar for reopening. The law is highly deferential in this area: not only do “[w]e review denials of motions to reopen for abuse of discretion,” Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010), but our court has layered this standard on top of substantial evidence review. See id. at 991 (“[S]ubstantial evidence supports the Board‘s finding that the evidence [the petitioner] submitted in her motion to reopen was not qualitatively different from the evidence presented at the original hearing.“). The BIA addressed this exact question, in such a way that not even the majority can pretend is wrong
For all these reasons, I would hold that the BIA showed “proper consideration of all factors,” Bhasin v. Gonzales, 423 F.3d 977, 983 (9th Cir. 2005), and did not abuse its