Salim v. Lynch

• Decision Date: 01 August 2016
• Docket Number: No. 13-71833,13-71833
• Citation: 831 F.3d 1133
• Parties: Kurniawan Salim, Petitioner, v. Loretta E. Lynch, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

831 F.3d 1133

Kurniawan Salim, Petitioner,

v.Loretta E. Lynch, Attorney General, Respondent.

No. 13-71833

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 9, 2016, Pasadena, California

Filed August 1, 2016

David M. Haghighi (argued), Law Offices of David M. Haghighi, Los Angeles, California, for Petitioner.

Tracie N. Jones (argued), Trial Attorney; Cindy S. Ferrier, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Before: Stephen Reinhardt and Kim McLane Wardlaw, Circuit Judges, and Edward R. Korman,^* District Judge.

OPINION

REINHARDT

, Circuit Judge:

Kurniawan Salim (“Salim”), a native and citizen of Indonesia, petitions for review from the Board of Immigration Appeals' (“BIA”) denial of his motion to reopen his asylum and withholding of removal proceedings. Salim is a practicing Catholic, and brings his motion to reopen due to changes in country conditions for Christians in Indonesia since his initial hearing before an Immigration Judge (“IJ”) in 2006. We conclude that the BIA abused its discretion when it denied Salim's motion to reopen as untimely. Substantial evidence supports his claim of changed country conditions, and he has presented sufficient evidence of individualized risk to establish a prima facie case for the relief sought. We therefore grant the petition for review and remand for further proceedings consistent with this opinion.

I. Factual and Procedural Background

Salim arrived in the United States on a tourist visa on January 22, 2001. He and his wife are the parents of two children, ages six and twelve, both of whom were born in the United States and are American citizens. Salim has no criminal record, and since 2004 has worked as a restaurant manager in California.

In 2003, the Department of Homeland Security initiated removal proceedings against Salim for having overstayed his initial visa. In response, Salim submitted an application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”) on the basis of persecution he faced in Indonesia due to his Chinese ethnicity. On February 22, 2006, the IJ denied Salim's asylum application as untimely, and rejected his withholding of removal and CAT claims. The BIA affirmed this decision on September 26, 2007.

Salim then appealed to this court, which remanded to the BIA in light of our holding in Wakkary v. Holder , 558 F.3d 1049 (9th Cir. 2009)

, that an asylum applicant's membership in a disfavored group is relevant to his request for withholding of removal. On remand, the BIA again denied Salim's application for withholding of removal, concluding that Salim had not demonstrated a sufficient individualized risk of persecution on account of his Chinese ethnicity. On October 15, 2012 this court upheld the BIA decision in an unpublished memorandum disposition. Salim v. Holder , 483 Fed.Appx. 386 (9th Cir. 2012) (unpublished).

The case comes back before us today after Salim moved to reopen his immigration proceedings in March of 2013. While a motion to reopen must generally be filed no later than 90 days after a final removal decision, 8 C.F.R. § 1003.2(c)(2)

, the deadline does not apply to applications or reapplications for asylum or withholding of removal that are “based on changed circumstances arising in the country of nationality.” 8 C.F.R. § 1003(c)(3)(ii). Salim filed his motion pursuant to this “changed country conditions” exception.

In the time between his previous hearing in 2006 and his motion to reopen in 2013, Salim converted from Buddhism to Catholicism. In light of his conversion, Salim stated that he sought to reopen his asylum claim because circumstances had “changed dramatically” for Indonesian Christians since 2006. Salim explained that “anti-Christian sentiment ha[s] increased in the recent months” in Indonesia, and that the government was no longer taking steps to “maintain religious freedom.” For support, Salim submitted over 100 pages of evidence documenting the rising violence against Indonesian Christian communities. Salim additionally presented a sworn personal declaration attesting to his fear of returning to Indonesia as a Catholic, as well as a letter from his sister in Jakarta describing the recent targeting of their local church.

On May 8, 2013, in a page-long opinion, the BIA denied Salim's motion to reopen as untimely. According to the BIA, Salim had failed to meet the changed country conditions exception because the material attached to his motion was “largely cumulative of the evidence presented when this case was last before the Immigration Judge.” Furthermore, the BIA stated that, “[t]here is nothing in the evidence submitted that relates specifically to the respondent.” Finally, the BIA noted that while Salim's motion was based on his fear of persecution as a Catholic, he had “previously indicated that he is a Buddhist.” Salim timely petitioned for review of the BIA's decision, and the instant petition for review followed.

II. Standard of Review

We review the denial of a motion to reopen for abuse of discretion. Perez v. Mukasey , 516 F.3d 770, 773 (9th Cir. 2008)

. We review the BIA's determination of legal questions de novo, and factual findings for substantial evidence. Bhasin v. Gonzales , 423 F.3d 977, 983 (9th Cir. 2005).

III. Analysis

A. Changed Country Conditions

Judicial review of a motion to reopen serves as a “safety valve” in the asylum process. Fernandez v. Gonzales , 439 F.3d 592, 602 (9th Cir. 2006)

(citation omitted). Such oversight “ensure[s] that the BIA lives by its rules and at least considers new information” bearing on applicants' need for and right to relief. Pilica v. Ashcroft , 388 F.3d 941, 948 (6th Cir. 2004). Salim's case demonstrates the importance of this authority. Here, the BIA committed both legal and factual error when it declared that Salim's motion to reopen, filed on an entirely distinct ground from his prior request for relief, was “cumulative” of the information presented at his previous hearing.

To meet the changed country conditions exception, a petitioner's motion to reopen must present evidence that is “material and was not available and could not have been discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii)

. Thus, the changed country conditions exception is concerned with two points in time: the circumstances of the country at the time of the petitioner's previous hearing, and those at the time of the motion to reopen. The “critical question is not whether the allegations bear some connection to a prior application, but rather whether circumstances have changed sufficiently” in the country since the prior hearing so that the petitioner now has a legitimate claim for asylum. Malty v. Ashcroft , 381 F.3d 942, 945 (9th Cir. 2004). Put otherwise, the evidence submitted with the motion to reopen must be “qualitatively different from the evidence presented at [the] asylum hearing.” Id.

Salim first filed for asylum in 2006 because he feared returning to Indonesia due to his Chinese ethnicity. While Salim's initial application included minimal evidence related to the mistreatment of Christians in Indonesia, he was at that time a Buddhist, and such assertions were therefore not the basis of his asylum claim.¹ The overwhelming majority of the evidence instead related to the persecution of Salim and his family members due to their Chinese ethnicity. Now, Salim has converted to Catholicism, and seeks refuge in this country due to his risk of persecution in Indonesia on account of his Christian faith. As we recently recognized in Chandra v. Holder , 751 F.3d 1034, 1038 (9th Cir. 2014)

, changed country conditions can become material due to changes in a petitioner's personal circumstances, including religious conversion.² In this case, the BIA correctly recognized that Salim's motion to reopen and accompanying application for asylum and other relief were based on his Christian faith, rather than his Chinese ethnicity. The BIA erred, however, in its assessment of the evidence presented.

According to the BIA, Salim's motion did not meet the changed country conditions exception because the evidence he submitted was “largely cumulative” of that offered when the case was before the IJ in 2006. This reasoning makes little sense where, as here, the motion to reopen presents a different basis for relief than was relied upon during the prior hearing. In such cases, the evidence related to the new claim for relief is necessarily “qualitatively different” from that offered at the earlier hearing. Thus, the only question that remains before the BIA is whether the motion to reopen demonstrates a change in country conditions with respect to the petitioner's current basis for relief. The comparison to be made is not between the motion to reopen and the previous application, but between the country conditions at the time of the instant motion, and those at the time of the prior hearing. It was therefore legal error for the BIA to conclude that Salim's motion to reopen was “cumulative” of his 2006 application. Analyzed under the correct standard, substantial evidence demonstrates that Salim's motion to reopen meets the changed country conditions exception.

To support his claim of changed conditions in Indonesia, Salim submitted numerous articles on the mistreatment of Christians. Salim further provided multiple reports documenting “an upsurge of religious radicalism” and describing the growth of an “extremist fringe” in recent years. These articles explained that “cases of intolerance are on the rise,” and that “Christians ha [ve] replaced the Islamic minority sect Ahmadiyah as the group whose religious freedoms have been violated the most.” There is substantial evidence that these developments occurred after 2006, as the reports state that Christians have increasingly been the target of Islamic extremist movements in the “past two or three...