Tampubolon v. Eric H. Holder Jr
| Decision Date | 09 March 2010 |
| Docket Number | No. 06-70811.,06-70811. |
| Citation | 610 F.3d 1056 |
| Parties | Riori TAMPUBOLON; Erlinda Silitonga, Petitioners,v.Eric H. HOLDER Jr., Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Vera A. Weisz, Law Office of Vera A. Weisz, Los Angeles, CA, for the petitioners.
Kristin Edison and Eric W. Marsteller, United States Department of Justice, Washington, D.C., for the respondent.
On Petition for Review of Orders of the Board of Immigration Appeals. Agency Nos. A095-630-032, A097-854-046.
Before: B. FLETCHER, HARRY PREGERSON and SUSAN P. GRABER, Circuit Judges.
The opinion filed March 9, 2010, opinion page 521, and appearing at 598 F.3d 521, is amended as follows:
On opinion page 524, replace the last sentence of footnote 1 with the following: “It appears that NSEERS was used to identify undocumented immigrants and remove those who comply.”
With this amendment, the panel has voted to deny the petition for panel rehearing.
Riori Tampubolon (“Tampubolon”) and his wife, Erlinda Silitonga (“Silitonga”) petition for review of the Board of Immigration Appeals (“BIA”) decision affirming the immigration judge's (“IJ”) denial of their applications for asylum, withholding of removal, and cancellation of removal from Indonesia. We deny the petition with respect to the asylum and cancellation of removal claims, but we grant the petition with respect to the withholding of removal claim. We hold that the BIA erred in failing to apply disfavored group analysis to petitioners' withholding claim because the record compels a finding that Christians in Indonesia are a disfavored group. We remand in accordance with INS v. Orlando Ventura, 537 U.S. 12, 16, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002).
Petitioners, devout Protestant Christians, are natives and citizens of Indonesia. In 1989, when he was 31 years old, Tampubolon entered the United States on a tourist visa. Likewise, in 1992, when she was 22 years old, Silitonga entered the United States on a tourist visa. Tampubolon and Silitonga met in the United States and married in 1995. They have two U.S. citizen daughters, ages 12 and 14. The entire family is active in their local church. They attend weekly services, Bible study, and prayer meetings. Silitonga teaches Sunday School, and the children sing in the choir. Tampubolon and Silitonga are both employed in the healthcare industry and pay taxes; neither has been arrested for any crime.
Petitioners came to the attention of the Department of Homeland Security (“DHS”) when they conformed to the National Security Entry-Exit Registration System (“NSEERS”) 1 and registered with Immigration and Customs Enforcement. In 2003 and 2004, respectively, DHS issued Notices to Appear to Tampubolon and Silitonga, charging them with removability for overstaying their visas. Tampubolon and Silitonga conceded removability and applied for relief from removal, including cancellation of removal, asylum, withholding of removal, and protection under CAT.
The IJ denied all applications for relief.2 The IJ denied petitioners' application for asylum because they failed to file their applications within one year of arrival, and also failed to demonstrate changed circumstances. The IJ denied petitioners' application for withholding of removal because neither had suffered past persecution and both had similarly situated siblings living in Indonesia who had not experienced problems practicing their Christian faith. The IJ denied petitioners' application for cancellation of removal because they failed to demonstrate that removal would result in exceptional and extremely unusual hardship to their two U.S. citizen daughters.3 The BIA adopted and affirmed the decision of the IJ, citing Matter of Burbano, 20 I. & N. Dec. 872 (B.I.A.1994). Petitioners timely petitioned for review. We have jurisdiction over the petition pursuant to 8 U.S.C. § 1252(a).
Where, as here, the BIA cites its decision in Burbano, and does not express disagreement with any part of the IJ's decision, we review the IJ's decision as if it were the BIA's decision. See Cinapian v. Holder, 567 F.3d 1067, 1073(9th Cir.2009). The BIA's determination that petitioners have not established eligibility for asylum or withholding of removal is reviewed for substantial evidence. See, e.g., Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir.2006).
Under the substantial evidence standard, the BIA's determinations will be upheld “if the decision is ‘supported by reasonable, substantial, and probative evidence on the record considered as a whole.’ ” Zhao v. Mukasey, 540 F.3d 1027, 1029 (9th Cir.2008) (quoting Abebe v. Gonzales, 432 F.3d 1037, 1039-40 (9th Cir.2005) (en banc)). Reversal, however, is appropriate when “the evidence in the record compels a reasonable factfinder to conclude that the [BIA's] decision is incorrect.” Id.
Purely legal questions, including jurisdictional questions, are reviewed de novo. See Taslimi v. Holder, 590 F.3d 981, 984 (9th Cir.2010).
To qualify for asylum, an applicant must file her application within one year after arrival in the United States. 8 U.S.C. § 1158(a)(2)(B). The limitations period will be tolled if the applicant can establish changed circumstances that materially affect her eligibility for asylum. 8 U.S.C. § 1158(a)(2)(D); 8 C.F.R. § 208.4(a)(4)(i). Contrary to the government's argument, we have jurisdiction to review an agency's changed circumstances determination. See Ramadan v. Gonzales, 479 F.3d 646, 648 (9th Cir.2007) (per curiam) ().
Petitioners argue that Sael v. Ashcroft, 386 F.3d 922 (9th Cir.2004), and Lolong v. Gonzales, 400 F.3d 1215 (9th Cir.2005) (“ Lolong I ”) rev'd, 484 F.3d 1173 (9th Cir.2007) (en banc) (“ Lolong II ”), constituted changed circumstances because they changed United States law in a way that materially affects their eligibility for asylum. 8 C.F.R. § 208.4(a)(4)(i)(B). We review the IJ's changed circumstances determination for substantial evidence. See Ramadan, 479 F.3d at 657. Petitioners' argument fails because both Sael and Lolong were decided after petitioners filed their asylum applications. Accordingly, those decisions could not have tolled the one-year statute of limitations.4 We affirm the IJ's denial of petitioners' asylum application as untimely.
Unlike asylum, there is no statutory time limit for filing a withholding application. Himri v. Ashcroft, 378 F.3d 932, 937 (9th Cir.2004) (citing 8 U.S.C. § 1231(b)(3)). Accordingly, petitioners' application for withholding of removal is not time-barred. Petitioners argue that the BIA erred by failing to apply disfavored group analysis to their withholding claim because Christians are a disfavored group in Indonesia. We agree and remand to the BIA to use the disfavored group analysis in determining whether petitioners are entitled to withholding of removal.
A “disfavored group” is “a group of individuals in a certain country or part of a country, all of whom share a common, protected characteristic, many of whom are mistreated, and a substantial number of whom are persecuted” but who are “not threatened by a pattern or practice of systematic persecution.” Wakkary, 558 F.3d at 1052, 1062(brackets and internal quotation marks omitted). Although we held in Sael, 386 F.3d at 927, that the ethnic Chinese are a disfavored group in Indonesia, and suggested in Wakkary, 558 F.3d at 1063, that Chinese Christians are disfavored in Indonesia, we have never determined whether Christians who are not Chinese are a disfavored group in Indonesia.
In Sael, we held that Indonesia's ethnic Chinese minority are a “disfavored group” because of Indonesia's long history of anti-Chinese violence and official discrimination. 386 F.3d at 927. We noted that official policies of ethnic tolerance and decreased numbers of racially motivated attacks did not diminish the “disfavored” status of ethnic Chinese because official discrimination continued and Chinese-Indonesians experienced “centuries of persecution.” Id. at 929. Here, petitioners have also submitted compelling evidence that Christians in Indonesia are subject to violence and official discrimination.
Indonesia is the world's most populous Muslim country. Nearly 90 % of Indonesians are Muslim, while Protestant Christians only account for 6 % of the population. According to the 2003 U.S. State Department Country Report on Human Rights Practices in Indonesia (“Country Report”), “[t]he Government ... frequently failed to protect adequately the fundamental rights ... of religious minorities.”
Muslims and Christians lived together in relative peace until the 1990s when President Suharto began courting militant Islamic groups to maintain his political power. See Mieke Kooistra, Minority Rights Group Int'l Indonesia: Regional Conflicts and State Terror 14 (2001). Consequently, militant Islam increased in strength and political influence. Id. During this time, Suharto purged his cabinet and army of Christians and replaced them with fundamentalist Muslims. Id. Even after Suharto's regime ended, the military and political elite continued to protect violent Muslim militia groups, such as Laskar Jihad, whose goal is to kill, convert, or drive out all non-Muslims from certain parts of Indonesia. Id. at 20; see also Paul Marshall Jihad Comes to Indonesia, The Weekly Standard, Dec. 31, 2001, at 20.
The Indonesian government's support of, or at the very least, acquiescence in, militant expressions of Islam has subjected Christians to violent persecution in Indonesia. The record demonstrates that Christian churches throughout...
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