Nababan v. Garland

• Decision Date: 23 November 2021
• Docket Number: No. 18-72548,18-72548
• Citation: 18 F.4th 1090
• Parties: Henri NABABAN; Harlena Rose Silalahi, Petitioners, v. Merrick B. GARLAND, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

18 F.4th 1090

Henri NABABAN; Harlena Rose Silalahi, Petitioners,

v.Merrick B. GARLAND, Attorney General, Respondent.

No. 18-72548

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 13, 2021 Pasadena, California

Filed November 23, 2021

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.

Before: Richard A. Paez and Lawrence VanDyke, Circuit Judges, and Sharon L. Gleason,^* District Judge.

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 8 U.S.C. § 1252(a)(1), we grant the petition for review, vacate the orders of removal, and remand for further proceedings consistent with this opinion.

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.

In 2003, Petitioners were each served a Notice to Appear and charged with removability under 8 U.S.C. § 1182(a)(6)(A)(i). Petitioners conceded removability and sought relief in the forms of asylum, withholding of removal, and claims under the CAT. Petitioners principally claimed fear of persecution and torture in Indonesia on account of their SDA faith. Silalahi testified that she had not been allowed to spread the word of her faith when she had resided in Indonesia and would be unable to safely spread the word of her religion if she returned to Indonesia. Nababan testified that he was a deacon in the SDA, with the responsibilities of cleaning the church, visiting ill members, and participating in spreading the Gospel.

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, the evidence demonstrated sporadic incidents against Christians that were limited to specific parts of Indonesia. Additionally, the BIA assumed that Petitioners were members of a disfavored group but nonetheless concluded that "they have not established that they face a ‘unique risk of persecution’ that is ‘distinct from [their] mere membership in a disfavored group.’ " Because Petitioners failed to submit evidence of individualized harm, the BIA found they were not eligible for asylum or withholding of removal under the disfavored group analysis. The BIA also rejected Petitioners' CAT claims.

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.

The BIA determined that Petitioners' motion was untimely, then evaluated whether Petitioners' claims fell within the only applicable exception to the timeliness requirement: changed country conditions. Comparing the evidence of Indonesia's conditions submitted with the motion to those that existed at the time of Petitioners' April 2009 removal hearing, the BIA concluded that Petitioners had not met their "heavy burden" to demonstrate a material change in country conditions. The BIA found that "violence against Christians in Indonesia is neither systemic nor pervasive, but has continued sporadically over the years" and that "while Christians are a ‘disfavored group’ in Indonesia, ... the respondents have not offered evidence showing that they face an individualized risk of future persecution on account of their religion so as to distinguish their risk of persecution from the generalized risk felt by all Christians in Indonesia." Accordingly, the BIA denied Petitioners' untimely motion.¹

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.

On January 2, 2018, Petitioners filed their second motion to reopen, which is the subject of this petition. Petitioners sought to reapply for asylum, withholding of removal, and CAT protection based on "changed country conditions in Indonesia that materially affect their new leadership roles in the Seventh Day Adventist Church." Petitioners asserted that there had been an "eruption of attacks against Christians as a whole starting in 2016." Petitioners stressed that they practiced evangelical Christianity, in which a key tenet of their faith is spreading the Gospel, and noted the heightened danger they would face if they were to proselytize in Indonesia. Petitioners also explained that, in addition to being a deacon in the church, Nababan had been chosen as a church elder for the 2018–2019 year, and Silalahi had been chosen as a deaconess for the 2018–2019 year in addition to her continued work as a Sabbath schoolteacher and church pianist. Petitioners contended that their new leadership positions in the SDA would place them in greater danger in light of Indonesia's recent "rigorous enforcement of anti-blasphemy legislation against evangelical Christians" and "an increase in violence against Christian evangelicals perpetrated by Muslim radicals and hardline Islamic groups, whom the Indonesian government supports or fails to suppress." Petitioners provided a letter from Silalahi's father, an SDA member in Indonesia, who explained that he had been recently beaten, kicked, and spit on for proselytizing to a Muslim. Petitioners also provided evidence that the front door of an SDA church had been intentionally burnt down in February 2017 and of protests in late 2016 sparked by a Christian politician's alleged blasphemy of the Koran. After the protests, the Christian politician—popularly known as Ahok—was prosecuted under Indonesia's blasphemy laws and sentenced to two years' imprisonment. Petitioners further submitted several news articles and reports that discussed religious intolerance in Indonesia.

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

The BIA denied Petitioners' motion on August 28, 2018. The BIA first summarized Petitioners' claims, noting that they were active members and...