Marsadu v. Holder

• Decision Date: 04 April 2014
• Docket Number: No. 13–1024.,13–1024.
• Citation: 748 F.3d 55
• Court: U.S. Court of Appeals — First Circuit
• Parties: Nova Flora MARSADU and Roly Rondonuwu, Petitioners, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.

748 F.3d 55

Nova Flora MARSADU and Roly Rondonuwu, Petitioners,

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

No. 13–1024.

United States Court of Appeals,First Circuit.

April 4, 2014.

Thomas V. Massucci, on brief for petitioners.

Justin R. Markel, Trial Attorney, Office of Immigration Litigation, Civil Division, Stuart F. Delery, Acting Deputy Assistant Attorney General, Civil Division, Department of Justice, and Carl H. McIntyre, Assistant Director, Office of Immigration Litigation, on brief for respondent.

Before LYNCH, Chief Judge, TORRUELLA and KAYATTA, Circuit Judges.

TORRUELLA, Circuit Judge.

Petitioners, Nova Flora Marsadu (“Marsadu”) and Roly Rondonuwu (“Rondonuwu”) (collectively, “Petitioners”), petition for review of the Board of Immigration Appeals' (“BIA”) order denying their motion to reopen removal proceedings. Specifically, Petitioners dispute the BIA's finding that they failed to demonstrate a prima facie case for asylum. We disagree with Petitioners, and find that they have failed to demonstrate error sufficient to warrant reopening of their removal proceedings. After careful consideration, we thus deny their petition for review.

I. Background

Petitioners are both native citizens of Indonesia and are of the Christian faith. They have been married since 1997; they have two children together, both of whom were born in the United States. On April 22, 2001, the Department of Homeland Security (“DHS”) admitted Rondonuwu as a nonimmigrant B–1 visitor with authorization to remain in the United States until July 21, 2001. On May 7, 2002, the DHS admitted Marsadu as a nonimmigrant B–2 visitor with authorization to remain in the United States until November 6, 2002.

On February 21, 2003, Marsadu submitted an application for asylum, 8 U.S.C. § 1158(a), and withholding of removal, 8 U.S.C. § 1231(b)(3)(A), as well as for relief under Article 3 of the United Nations Convention Against Torture (“CAT”), all based on her fears of being persecuted in Indonesia due to her Christian faith. On April 16, 2003, while Marsadu's application was pending, the DHS placed Rondonuwu in removal proceedings. On September 28, 2004, Rondonuwu filed an application for asylum, mirroring Marsadu's theory on her application for withholding of removal. Thereafter, on August 4, 2006, the DHS also placed Marsadu in removal proceedings. The Immigration Judge (“IJ”) consolidated Petitioners' cases and after a hearing on the merits on April 26, 2007, denied all of their claims.

Subsequently, Petitioners filed a timely notice of appeal to the BIA. The BIA affirmed the IJ's decision, and denied Petitioners' appeal on March 13, 2009. Petitioners thereafter moved this court to review the BIA's denial of the appeal, and on October 30, 2009, we denied their request.

On July 9, 2012, Petitioners filed an untimely motion with the BIA to reopen removal proceedings, arguing that they are prima facie eligible for asylum due to recent changes in country conditions in Indonesia that put them at risk of persecution. Specifically, Petitioners argued that there had been a recent rise in violence in Indonesia led by radical Islamists against Christian minority groups, and that the Indonesian government had become increasingly tolerant of these attacks. To support their contentions, Petitioners relied heavily on an affidavit from Dr. Jeffrey A. Winters, Ph.D., an expert in Southeast Asian political economy and comparative politics, with an emphasis on Indonesia.

On December 4, 2012, the BIA denied Petitioners' motion to reopen removal proceedings. The BIA concluded that Petitioners' evidence in support of their motion was insufficient to show “a change in conditions or circumstances in Indonesia material to [their] asylum claim.” In particular, the BIA noted that: Petitioners' evidence was not individualized to reflect dangers posed specifically to them; Petitioners had failed to demonstrate a pattern or practice of persecution of Christians in Indonesia; and Petitioners did not demonstrate that attacks on Christians in Indonesia were a recent development, as such violence had been occurring at the time of Petitioners' 2007 asylum hearing. Therefore, the BIA concluded that Petitioners had failed to demonstrate a reasonable likelihood that they would face religious persecution if they returned to Indonesia. This petition followed.

II. Discussion

A “denial of a motion to reopen will be upheld ‘unless the complaining party can show that the BIA committed an error of law or exercised its judgment in an arbitrary, capricious, or irrational way.’ ” Tawadrous v. Holder, 565 F.3d 35, 38 (1st Cir.2009) (quoting Tandayu v. Mukasey, 521 F.3d 97, 100 (1st Cir.2008)). In conducting this review, we accept the BIA's findings of fact, “as long as they are supported by substantial evidence,” and we review legal conclusions de novo. Smith v. Holder, 627 F.3d 427, 433 (1st Cir.2010).

In general, “an alien may file only one motion to reopen removal proceedings ... and that motion must be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened.” 8 C.F.R. § 1003.2(c)(2). However, these limitations do not apply to motions to reopen proceedings “based on changed circumstances arising ... in the country to which deportation has been ordered, if such evidence is material and was not available ... at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii). A petitioner's evidence of “changed circumstances” must demonstrate an “intensification or deterioration of [his] country['s] conditions, not their mere continuation.” Tawadrous, 565 F.3d at 38. Thus, a petitioner's motion to reopen must meet two threshold requirements: (1) it must establish “a prima facie case for the underlying substantive relief sought,” and (2) it must introduce “previously unavailable material, evidence.” Fesseha v. Ashcroft, 333 F.3d 13, 20 (1st Cir.2003) (internal quotation marks omitted) (quoting I.N.S. v. Abudu, 485 U.S. 94, 104, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988)).

For a petitioner to establish a prima facie case for asylum, he must show that he is “unable or unwilling” to return to his country of origin “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). A petitioner may demonstrate his “well-founded fear of persecution” with evidence establishing a “reasonable likelihood” that he will face future persecution in his country, provided that his fears are both subjectively genuine and objectively reasonable. Smith, 627 F.3d at 437; 8 C.F.R. § 208.13(b). To prove that his fears are objectively reasonable, a petitioner typically must either: (a) produce “credible, direct, and specific evidence supporting a fear of individualized persecution in the future,” Li Sheng Wu v. Holder, 737 F.3d 829, 832 (1st Cir.2013) (internal quotation marks omitted) (quoting Decky v. Holder, 587 F.3d 104, 112 (1st Cir.2009)); or (b) he must “establish[ ] that there is a pattern or practice in his ... country of nationality ... of persecution of a group of persons similarly situated to the [petitioner] on account of race, religion, nationality, membership in a particular social group, or political opinion,” 8 C.F.R. § 1208.13(b)(2)(iii)(A).

Petitioners marshal, essentially, three arguments on appeal. They argue that the BIA erroneously characterized the evidence of country conditions, that it was legal error for the BIA to require a showing of individualized risk of harm, and that the BIA incorrectly relied on our decision in Decky v. Holder, 587 F.3d 104 (1st Cir.2009) for its finding that there is no ongoing pattern of persecution against Christians in Indonesia. None of these theories holds water.

Petitioners' first argument, that the BIA erred in weighing and characterizing the evidence of changed country conditions, is twofold. Petitioners initially contend that the BIA was myopic in assessing country conditions in Indonesia, basing its decision only on the fact that country conditions were already difficult for Christians in 2007, when Petitioners first applied for asylum. They insist that the BIA should have assessed the deterioration of those conditions since 2007, up to the year 2012, as described in Dr. Winters's report.

A review of the record shows this precisely is what the BIA endeavored to do: the BIA compared Petitioners' evidence from the 2007 hearing with the newly proffered evidence, and noted that according to Dr. Winters, “from 2009 forward the level of violence and intolerance directed at religious minorities has increased at an alarming rate.” The BIA concluded that these conditions did not differ significantly from those present in 2007. The BIA rested its decision on other evidence in the record, as well as parts of Dr. Winters's report, that indeed could support the conclusion that aggression by Muslim extremists against Christians and other minority groups was present to a similar degree in 2007. Ultimately, the BIA addressed the correct issue, examined all of the evidence of country conditions for the years 2007 through 2012 before it, and concluded that, notwithstanding Dr. Winters's take on the matter, Petitioners failed to show an “intensification or deterioration of country conditions.” Tawadrous, 565 F.3d at 38. The BIA took into account the evidence before it, and found only a “mere continuation” of the same general conditions present in 2007. Id. On this record, we cannot hold that the BIA's conclusion constitutes an abuse of discretion.

Petitioners also claim that the BIA failed to properly address, and seriously mischaracterized, Dr. Winters's report. They complain that the BIA reduced the thirty-eight page report to a mere statement that radical Islamic groups had gained a foothold in Indonesia since 2004, and that acts of...