YOHAN BYLLY SALIM v. ERIC H. HOLDER, JR., Attorney General of the United States
No. 12-3858
United States Court of Appeals For the Seventh Circuit
August 28, 2013
ARGUED MAY 28, 2013 — DECIDED AUGUST 28, 2013
Before EASTERBROOK, Chief Judge, and WILLIAMS and HAMILTON, Circuit Judges.
WILLIAMS, Circuit Judge. Petitioner Yohan Bylly Salim, an Indonesian citizen, fled his homeland in 2000 and came to the United States. He sought asylum, withholding of removal, and relief under the Convention Against Torture on the ground that he endured several instances of harassment and
I. BACKGROUND
Salim is an Indonesian citizen of Chinese ethnicity and Christian faith. While living in Indonesia as a teenager, Salim attended private Christian schools but says he endured ongoing harassment from Muslim students at some of the nearby public schools because of his Chinese ethnicity. He was robbed by students from nearby schools for his lunch money several times, and once a student with a knife threatened him and punctured his neck. Salim also claims it was difficult for Chinese individuals and Christians to travel safely around Jakarta during the period of intense rioting in 1998. He recounts that a number of Chinese businesses were burned down during that time, though his family‘s business was not harmed.
Salim left Indonesia as a young adult in 2000 and filed a timely application for asylum, withholding of removal, and protection under the Convention Against Torture. His appli-
The BIA found that the IJ‘s decision was not adequately supported and remanded the case so that Salim could submit additional evidence of conditions in Indonesia. Salim appeared for a final hearing before a different IJ in February 2010. Salim‘s attorney did not present any new evidence of conditions in Indonesia, but the government presented the United States Department of State‘s 2008 Country Report on Human Rights Practices in Indonesia. After considering all of the evidence, the IJ found Salim‘s testimony truthful, but nevertheless concluded that the facts of Salim‘s case did not rise to the level of past persecution. In the IJ‘s view, the times Salim was threatened and robbed by other students on his way to and from school appeared to be random acts of violence. The IJ also concluded that Salim had failed to establish a well-founded fear of future persecution. Salim did not present any evidence suggesting that he would be singled out individually for persecution if returned to Indonesia, and even though general discrimination against ethnic and religious minorities in Indonesia still exists, the IJ noted that instances of harassment against Chinese people were on the decline.
Salim did not appeal the IJ‘s decision, but filed a motion to reopen his proceedings. In support of his motion, he filed over twenty articles about religious tension in Indonesia and argued that he should qualify for asylum under Ninth Cir-
II. ANALYSIS
Salim contends on appeal that the BIA‘s denial of his motion to reopen the proceedings constituted an abuse of discretion. To prevail on a motion to reopen, a petitioner must point to new evidence that is material and was not available and could not have been discovered or presented at the former hearing.
A. No New Evidence Presented
To support his motion to reopen, Salim submitted numerous news articles in an attempt to show the extent of discrimination against Chinese Christians in Indonesia. But the problem for Salim is that he cannot show that any of this ev-
Salim further argues that the BIA failed to consider a Ninth Circuit case, Tampubolon v. Holder, 610 F.3d 1056 (9th Cir. 2010), as new and material case law in evaluating his motion. The petitioners in that case, Protestant Christians, maintained that they should qualify for withholding of removal because they had a well-founded fear of future persecution if returned to Indonesia. They argued that Christians are a disfavored group in Indonesia, subject to severe discrimination and violence, and that their membership in that group made it more likely than not that they would be singled out individually for persecution on account of their religion. See
As an initial matter, a change in case law is not considered new evidence for purposes of a motion to reopen. Mungongo v. Gonzales, 479 F.3d 531, 534 (7th Cir. 2007). It is a motion for reconsideration, as opposed to a motion to reopen, that asks the agency to consider a change in the law. See Victor v. Holder, 616 F.3d 705, 709 (7th Cir. 2010) (explaining that a motion to reconsider asks the BIA to revisit its decision in light of additional legal arguments, a change of law, or an argument that was overlooked earlier, whereas a motion to reopen does not take issue with the BIA‘s decision at the time it was entered, but instead asks the BIA to reexamine its opinion in light of evidence that was unavailable at the time of the original opinion).
But more importantly, the disfavored group analysis used in asylum and withholding of removal cases in the Ninth Circuit is also not new or a change in the law. This approach dates back to at least 1994 in the asylum context. See Kotasz v. INS, 31 F.3d 847, 853 (9th Cir. 1994); see also Sael v. Ashcroft, 386 F.3d 922, 927 (9th Cir. 2004) (finding Indonesia‘s ethnic Chinese minority a disfavored group). And the Ninth Circuit‘s decision in Wakkary v. Holder (which recog-
B. Disfavored Group Approach Does Not Apply
Both the IJ and BIA found Tampubolon unhelpful to Salim‘s case not only because it was not evidence and did not offer anything new, but also because the disfavored group analysis used in the Ninth Circuit has been expressly rejected by our circuit. Indeed, several of our cases have rejected this approach on the grounds that it is a less stringent test. See Ingmantoro, 550 F.3d at 652 n.7 (citing cases); Kaharudin v. Gonzales, 500 F.3d 619, 625 (7th Cir. 2007) (noting that while [t]he Ninth Circuit has deemed ethnic Chinese a disfavored group in Indonesia, … [w]e previously have considered and rejected the application of the Ninth Circuit‘s disfavored group’ analysis in the context of withholding removal, and we decline to revisit the issue in this case.); Firmansjah v. Gonzales, 424 F.3d 598, 607 n.6 (7th Cir. 2005) (This circuit has not recognized a lower threshold of proof based on membership in a disfavored group.‘). In light of the controlling precedent in this circuit, the BIA did not abuse its discretion in declining to apply Tampubolon.
But the central question of whether the Ninth Circuit‘s disfavored group approach actually differs from our circuit‘s analysis of these cases in a meaningful way remains. In both the asylum and withholding of removal context, an applicant may be eligible for relief if he can demonstrate a well-founded fear of future persecution.
The second, alternative method of finding future persecution calls for an individualized assessment of the risk of harm. Under this method, an applicant must show that there is a reasonable possibility (in the asylum context) or that it is more likely than not (in the withholding of removal context) that he will be singled out individually for persecution if forced to return home.
In theory, one could view the Ninth Circuit‘s approach on this score as a simple recognition that group membership matters, as it is an aspect of nearly all asylum claims, not a special problem limited to pattern or practice cases. See Kotasz v. INS, 31 F.3d 847, 853 (9th Cir. 1994). And the INS regulations clearly contemplate the effect of group membership on an individual‘s circumstances by enumerating the five statutory categories of withholding eligibility. Kho v. Keisler, 505 F.3d 50, 55 (1st Cir. 2007). But this approach has led to significant disagreement among the circuits because it invites one to question what exactly it seeks to add to the existing regulatory regime that is not already covered under the pattern or practice theory of persecution. In practice, the Ninth Circuit appears to be using a sliding-scale approach to find the more serious and widespread the threat to the [disfavored] group in general, the less individualized the threat of persecution needs to be. Sael, 386 F.3d at 925. In Sael, the record showed significant discrimination against Chinese minorities in Indonesia, but this mistreatment did not rise to the level of a pattern or practice of persecution. Id. at 929. However, the petitioner did successfully demonstrate the general persecution of ethnic Chinese, sufficient to characterize their status as disfavored’ in Indonesia, id., and so she only had to establish a comparatively low level of individualized risk in order to prove that she has a well-founded fear of future persecution. Id. at 927; see also Wakkary, 558 F.3d at 1064. Essentially, this approach serves as a
Though we often discuss a petitioner‘s membership in a particular group in the context of assessing an individualized threat of future persecution, see Escobar v. Holder, 657 F.3d 537, 549 (7th Cir. 2011), we have never held that a petitioner may put forth less evidence of individualized persecution simply by virtue of belonging to a disfavored group. See, e.g., Zhou Ji Ni v. Holder, 635 F.3d 1014, 1020 (7th Cir. 2011) (denying petition for review where evidence of country conditions regarding Chinese repression of Christianity were untethered from facts establishing an individualized risk of persecution). Instead, we have always required a petitioner to show specific, detailed facts supporting the reasonableness of [his] fear that [he] will be singled out for persecution. Bhatt v. Reno, 172 F.3d 978, 982 (7th Cir. 1999) (citing cases). In reality, the disfavored group approach in the Ninth Circuit may yield similar or even identical results. See, e.g., Halim v. Holder, 590 F.3d 971, 978–79 (9th Cir. 2009) (denying petition for review where petitioner failed to make the minimal showing of individual targeting). But to the extent that the Ninth Circuit uses a lower standard for individualized fear absent a pattern or practice’ of persecution, Lie v. Ashcroft, 396 F.3d 530, 538 n.4 (5th Cir. 2005), we must join other circuits that have rejected the disfavored group approach. See id.; Kho, 505 F.3d at 55; Wijaya v. Gonzales, 227 Fed. Appx. 35, 38 n.1 (2d Cir. 2007) (summary order).
III. CONCLUSION
The petition for review is DENIED.