Chandra v. Holder

• Decision Date: 12 May 2014
• Docket Number: No. 10–70029.,10–70029.
• Citation: 751 F.3d 1034
• Parties: Cipto CHANDRA, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

751 F.3d 1034

Cipto CHANDRA, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 10–70029.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Feb. 13, 2014.

Filed May 12, 2014.

Gihan L. Thomas (argued), Law Offices of Gihan Thomas, Los Angeles, California, for Petitioner.

D. Nicholas Harling (argued); Nairi S. Gruzenski, Trial Attorney; Cindy S. Ferrier, Senior Litigation Counsel; Tony West, Assistant Attorney General, Civil Division, United States Department of Justice, Washington, D.C. for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A079–522–209.

Before: RICHARD A. PAEZ and JACQUELINE H. NGUYEN, Circuit Judges, and J. FREDERICK MOTZ, Senior District Judge.^*

OPINION

PAEZ, Circuit Judge:

Petitioner Cipto Chandra (“Chandra”) petitions for review of the Board of Immigration Appeals' (“BIA”) denial of his motion to reopen removal proceedings. After Chandra's order of removal became final in 2005, he converted to Christianity. On March 9, 2009, Chandra filed an untimely motion to reopen on the basis that religious persecution against Christians in Indonesia had worsened since his previous hearing. Because the BIA failed to consider Chandra's evidence of changed conditions in Indonesia in light of his conversion to Christianity, we grant the petition and remand for further proceedings.

I.

Chandra, an Indonesian citizen of Chinese descent, entered the United States in 1998 and overstayed his visa. In 2001, after the Department of Homeland Security initiated removal proceedings, Chandra conceded removability and filed an application for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (“CAT”) on the ground that he faced persecution in Indonesia because of his Chinese ethnicity. In January 2002, the Immigration Judge (“IJ”) denied Chandra's application for asylum as untimely, and his application for withholding of removal and CAT protection because he failed to carry his burden for either form of relief. The IJ granted Chandra's application for voluntary departure. In October 2003, the BIA dismissed his appeal. We denied Chandra's petition for review in February 2005. Chandra v. Gonzales, 123 Fed.Appx. 792 (9th Cir.2005).

Chandra did not leave the country after his order of removal became final. While remaining in the country, he converted to Christianity and began to attend church on a regular basis. Chandra filed a motion to reopen based on “changed circumstances in Indonesia.” His motion referred to “escalated and widespread persecution of Christians by Islamic fundamentalists [and the] Indonesian military, with the tacit cooperation of the Indonesian government.” For support, Chandra submitted the 2007 International Religious Freedom Report, prepared by the United States Department of State (“State Department”), news articles from 2008 reporting on violence perpetrated by Muslims against Christian religious leaders and followers in Indonesia, a 2009 travel warning issued by the State Department cautioning “Americans or other Western citizens and interests” about general terrorist threats in Indonesia, and other materials. Chandra also presented a letter from Tara Ongkowidjojo, the Church Administrator at City Blessing Church in Temple City, California, stating that Chandra “has been regularly attending [ ] church ... and attends the Care Cell Fellowship meeting every week.”

In December 2009, the BIA denied Chandra's motion. In a brief order, the BIA cited to 8 C.F.R. § 1003.2(c)(iii)(2) and explained that “[c]hanges in the respondent's personal circumstances in the United States do not constitute sufficiently changed circumstances so as to allow for the untimely reopening of these proceedings.”

Chandra filed a timely petition for review of the BIA's decision. We have jurisdiction pursuant to 8 U.S.C. § 1252.

II.

The Supreme Court has recognized that “[t]he motion to reopen is an important safeguard intended to ensure a proper and lawful disposition of immigration proceedings.” Kucana v. Holder, 558 U.S. 233, 242, 130 S.Ct. 827, 175 L.Ed.2d 694 (2010) (internal quotation marks and citations omitted). Motions to reopen, however, are generally disfavored because “every delay works to the advantage of the deportable alien who wishes merely to remain in the United States.” I.N.S. v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992). Thus, “[t]here is a strong public interest in bringing litigation to a close as promptly as is consistent with the interest in giving the adversaries a fair opportunity to develop and present their respective cases.” I.N.S. v. Abudu, 485 U.S. 94, 107, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988). “Mindful of the [BIA's] broad discretion” in deciding whether to grant a motion to reopen, “courts have employed a deferential, abuse-of-discretion standard of review.” Kucana, 558 U.S. at 242, 130 S.Ct. 827 (internal quotation marks and citations omitted). The BIA abuses its discretion when its denial of a motion to reopen is “arbitrary, irrational or contrary to law.” Azanor v. Ashcroft, 364 F.3d 1013, 1018 (9th Cir.2004) (internal quotation marks and citations omitted). We review de novo the BIA's conclusions on purely legal issues. Mejia v. Ashcroft, 298 F.3d 873, 876 (9th Cir.2002).

III.

Generally, a petitioner may file only one motion to reopen removal proceedings, and must do so within ninety days of the “final administrative decision.” 8 C.F.R. § 1003.2(c)(2); 8 U.S.C. § 1229a(c)(7)(C)(i). There is no dispute that Chandra failed to meet the ninety-day deadline. He contends, however, that his motion and supporting evidence fall within an exception “based on changed circumstances arising in the country of nationality ... if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.” ¹8 C.F.R. § 1003.2(c)(3)(ii) (“changed conditions exception”). Chandra argues that the BIA abused its discretion when it denied his motion because there is “material evidence of escalated and widespread persecution of Christians in ... Indonesia.” The Government argues that the BIA properly denied his motion because the “alleged changes in country conditions are irrelevant unless considered in the context of [Chandra's] change in personal circumstances, i.e. his conversion to Christianity.”

The plain language of 8 C.F.R. § 1003.2(c)(3)(ii) does not preclude an untimely motion where a change in the petitioner's personal circumstances is a necessary predicate to the success of the motion. The regulation establishes three evidentiary requirements: (1) “changed circumstances arising in the country of nationality or deportation”; (2) evidence that is “material”; and (3) evidence that was not “available” and could not have been “discovered or presented” at the time of the previous hearing. Id. Although the first requirement would prohibit a motion to reopen that relies solely on a change in personal circumstances, it does not prohibit a motion to reopen based on evidence of changed country conditions that are relevant in light of the petitioner's changed circumstances. In other words, if there is sufficient evidence of changed conditions in the receiving country, there is nothing in the plain language of the regulation that prevents a petitioner from referring to his personal circumstances to establish the materiality of that evidence.

The cases the Government cites for support are distinguishable because they address motions to reopen that rely solely on changes in personal circumstances and thus fail to satisfy the first evidentiary requirement. See Najmabadi v. Holder, 597 F.3d 983, 991 (9th Cir.2010) (recognizing that the petitioner's desire to become politically active in her native country was insufficient to demonstrate changed country conditions there); Lopez Almaraz v. Holder, 608 F.3d 638, 640 (9th Cir.2010) (holding that the petitioner's HIV diagnosis was “a change in his personal circumstances ... not a change in circumstances arising in [Guatemala]” (internal quotation marks and citations omitted)); He v. Gonzales, 501 F.3d 1128, 1132 (9th Cir.2007) (holding that the petitioners' birth of their third child was a change in personal circumstances, not a change in country conditions). These cases do not resolve the dispute at hand.²

Although this is a matter of first impression for our circuit, the Sixth, Seventh, and Eleventh Circuits have each determined that the BIA must consider changed country conditions as they relate to a petitioner's change in personal circumstances. In Shu Han Liu v. Holder, 718 F.3d 706, 707 (7th Cir.2013), the Chinese petitioner originally applied for asylum on the basis that, if removed, she would be persecuted because she had refused to marry a Communist Party official before leaving the country. In 2004, her application was denied and she was ordered removed. Id. She defied the removal order, however, and in 2011 filed a motion to reopen her removal proceedings on the basis that she had converted to Christianity and would face persecution in China for her newfound religious beliefs. Id. The Seventh Circuit held that, “if her conversion was sincere, [there was no] basis ... for treating her differently from someone who had converted to Christianity before coming to the United States[.]” Id. at 709;see also En Gao v. Holder, 721 F.3d 893, 895 (7th Cir.2013) (holding that a genuine conversion to Christianity, accompanied by an appreciable deterioration of treatment towards Christians in China, could form the basis of an untimely motion to reopen). After reviewing the new evidence, the court determined that because the petitioner's conversion to Christianity placed her at a greater risk at the time of her motion to reopen than she would have faced—had she been a Christian—at the time of her removal hearing in 2002, the BIA erred in denying her motion to reopen. Shu...