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Liem v. Attorney General United States of America

United States Court of Appeals, Third Circuit

April 19, 2019

GUNAWAN LIEM, Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent

          Argued on February 6, 2019

          On Petition for Review of an Order of the Board of Immigration Appeals (BIA: A079-709-771) Immigration Judge: Honorable Alberto J. Riefkohl

          James D. Arden Melanie Berdecia Samuel S. Choi [Argued] Eamon P. Joyce Sidley Austin Counsel for Petitioner

          Joseph H. Hunt Assistant Attorney General, Civil Division Song Park Senior Litigation Counsel Joseph A. O'Connell [Argued] United States Department of Justice Office of Immigration Litigation Counsel for Respondent

          Before HARDIMAN, SCIRICA, and RENDELL, Circuit Judges.

          OPINION

          RENDELL, CIRCUIT JUDGE.

         Gunawan Liem, an Indonesian national, petitions for review of the denial of his motion to reopen his removal proceedings. Although these motions are disfavored, the Board of Immigration Appeals (the "BIA") is still required to meaningfully consider the evidence and arguments presented by a petitioner and must explain its conclusions. Because the BIA failed to do so in this case, we will grant Liem's petition for review, vacate the order denying his motion to reopen, and remand to the BIA for further proceedings.

         I.

         A.

         Liem is a native and citizen of Indonesia. He is also ethnically Chinese and a practicing Seventh Day Adventist Christian, making him a member of two minority groups in his country of origin. While in Indonesia, Liem witnessed and experienced persecution based on his belonging to these groups.[1] As a result, he sought refuge in the United States and, in 1999, was granted a six-month visa for vacationing. He stayed beyond the expiration of his visa and established a life here by obtaining gainful employment, marrying his wife, and fathering two American-born children. Most notably for our purposes, he has been an active congregant of his local church, the First Indonesian Seventh-Day Adventist Church, and has also served the church as a deacon.

         In 2003, approximately four years after entering the United States, Liem filed an application for asylum, withholding of removal, and protection under the regulations implementing the Convention Against Torture (the "CAT"). The Immigration Judge (the "IJ") denied his application for asylum as untimely but granted withholding of removal. Although the IJ expressed some doubt as to whether Liem would be in "direct danger" if he returned to Indonesia, he resolved the issue in favor of Liem because he "[was] not willing to take any chances at th[e] moment and . . . [Liem] [wa]s asking only for temporary protection." AR 832-33. The Government appealed, and the BIA vacated the IJ's ruling because Liem "failed to meet his burden of proof to establish that there is a clear probability that he would be persecuted if returned to Indonesia." AR 770. Accordingly, the BIA ordered Liem removed to Indonesia. Liem did not petition for review of that order. Instead, he filed a motion to stay his removal and reopen the proceedings, referencing a continued "pattern of anti-Chinese harassment and persecution [and] . . . a pattern of anti-Christian persecution." AR 634. The BIA denied this motion, citing U.S. State Department findings of a decrease in discrimination against Chinese Christians in Indonesia. Liem petitioned this Court for review of that order, and we denied his petition. Liem v. Att'y Gen., 280 Fed.Appx. 206, 209 (3d Cir. 2008) (per curiam).[2]

         In early 2018, ICE agents arrested Liem and initiated the process of removing him to Indonesia. Liem filed a second motion to reopen his removal proceedings, this time claiming that, since the time of his merits hearing in 2003, conditions for Chinese Christians had materially deteriorated to an extent warranting reopening, despite the temporal and numerical limitations on motions to reopen.[3] In his motion, Liem urged that various international agencies "have reported that the level of hatred and Islamic extremism directed at Indonesian Christians on the grassroots level is rising, and the government of Indonesia is unwilling to act for fear of reprisals from the far-right Islamist groups." AR 31. He also highlighted, among other things, Indonesia's laws prohibiting blasphemy, which are markedly ambiguous and have been used against religious minorities, as well as the implementation of Sharia law in part of the country. Liem supported his claim of materially changed country conditions with numerous exhibits[4] and referenced several specifically in his motion to reopen.[5]

         The BIA, in a single member opinion, denied the motion to reopen. In this opinion, after noting the standard for granting untimely and number-barred motions to reopen, it concluded- without explanation-that Liem "offers little comparison between the country conditions or circumstances in 2003 and the current conditions or circumstances." A. 1. The BIA stated:

In any event, the respondent has not shown material changes in country conditions or circumstances in Indonesia since either 2003 or 2015/2016. The Department of State's 2016 Indonesia International Religious Freedom Report shows that the constitution of Indonesia guarantees freedom of religion and the right to worship according to one's own beliefs but allows the government to impose some legal restrictions.[] The articles and reports submitted by the respondent show that discrimination and violence against minority religions continue to exist in Indonesia; blasphemy laws have not been repealed despite recommendations by United Nations, but are still being enforced; and some Christian churches have problems with local governments and communities in connection with building relocation. However, the documents also show that these conditions have been a longstanding problem in Indonesia, rather than materially changed conditions or circumstances (Motion Exhs. LL, MM-OO, SS, WW, YY). The respondent argues that the "recent enactment" of blasphemy laws target the Christian minority (Motion at 8). However, the evidence submitted shows that blasphemy laws were enacted in 1965 and the threat of blasphemy law is "nothing new" (Motion Exh. SS at 2). The respondent also argues that Indonesia's Chinese population fears rising ethnic tensions (Motion at 9). However, ethnic tensions have existed since Indonesia's independence, and ethnic tensions against Chinese minorities have flared up into violent outbursts periodically since the country's independence (Motion Exh. QQ).

A. 1-2. Based on this, the BIA concluded that Liem did "not show[] that conditions or circumstances in Indonesia changed materially, such that his motion falls within the motion to reopen time and number limitations" and denied his motion as untimely. A. 2. This petition for review followed.

         B.

         Shortly after the BIA denied Liem's second motion to reopen and while this petition was pending, the First Circuit issued a precedential opinion in a factually related case, Sihotang v. Sessions, 900 F.3d 46 (1st Cir. 2018). There, the petitioner, an evangelical Christian from Indonesia, filed a motion to reopen his 2006 removal proceedings. Id. at 48-49. The BIA denied his motion "[i]n a terse one-and-a-half page opinion." Id. at 49. The First Circuit granted the petition and vacated and remanded because "the BIA's analysis [was] superficial." Id. at 50. The Court explained:

In his motion to reopen, the petitioner asserted-and the government did not dispute-that the petitioner subscribes to a more particularized subset of the Christian faith: he is an evangelical Christian, for whom public proselytizing is a religious obligation. Yet, in terms of the prospect of persecution arising out of changed country conditions, the BIA wholly failed to evaluate whether and to what extent there is a meaningful distinction between Christians who practice their faith in private and evangelical Christians (such as the petitioner), for whom public proselytizing is a central tenet. So, too, the BIA neglected to consider whether country conditions had materially changed with respect to public and private reactions (including vigilante violence) toward evangelical Christians. Finally, the BIA neglected to consider whether attitudes in Indonesia had materially changed with respect to persons making public religious statements.

Id. at 50-51. The First Circuit concluded that this error was not harmless because "[t]he record [wa]s replete with copious new evidence submitted by the petitioner and unavailable in 2006, which might well serve to ground a finding (or at least a reasonable inference) that country conditions have steadily deteriorated over the past twelve years." Id. at 51. In this vein, the Court detailed facts reflected in the evidence that the BIA "completely overlooked." Id. Many of these facts applied to evangelical and non-evangelical Christians alike, including the enactment of Sharia legislation in 2008, the prevention of thousands of Christians from attending Easter mass in 2010 by Muslim extremists and the local government, and demands from over 1, 500 Muslims that a Christian found guilty of blasphemy be executed in 2011. Id. at 51-52. The Court specifically noted the increased "Islamic fundamentalist fervor" that might put evangelical Christians "at special risk in Indonesia" and distinguished this case from prior cases because of the "especially sharp increase in governmental and private persecution of Indonesian Christians between 2014 and 2017-a period not under review in any of [our] prior cases." Id. at 51, 53.

         In the wake of Sihotang, the same member of the BIA who denied the motion to reopen that is the subject of this petition issued at least eight unpublished decisions granting reopening of removal proceedings for Indonesian Christians. See ADD 1-17. One of these decisions is within our circuit. See ADD 16 (Newark, NJ). In each decision, that member determined that conditions in Indonesia had materially changed from a period starting between 2004 and 2009 and ending in 2018. And although the member cited to Sihotang in at least seven of these opinions, none of them appear to hinge on whether the movant was an evangelical Christian or a Christian who practices privately. Instead, the BIA concluded generally that "conditions confronting Christians in Indonesia have deteriorated and intensified between [the movants'] prior hearing[s] . . . and the filing of [their] motion[s to reopen] . . . ." ADD 8; accord ADD 16-17.

         II.

         The BIA had jurisdiction over Liem's motion to reopen under 8 C.F.R. § 1003.2. We have jurisdiction over his petition for review pursuant to 8 U.S.C. § 1252. We review the denial of a motion to reopen for abuse of discretion and will not disturb the BIA's decision "unless it is found to be arbitrary, irrational, or contrary to law." Zhu v. Att'y Gen., 744 F.3d 268, 271 (3d Cir. 2014) (quoting Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004)) (internal quotation marks and alterations omitted). We also give deference to the BIA's evidentiary findings, id. at 272, and will uphold them if they are supported by substantial evidence, Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002). Nonetheless, as we discuss more fully below, the BIA has a heightened duty "to explicitly consider any country conditions evidence submitted by an applicant that materially bears on his claim." Zheng v. Att'y Gen., 549 F.3d 260, 268 (3d Cir. 2008).

         III.

         We begin our analysis by reviewing the legal principles at play. Then, we proceed to the merits of Liem's claim.

         A.

         8 U.S.C. § 1229a(c)(7) and 8 C.F.R. § 1003.2(c)(2) require that motions to reopen removal proceedings be filed within ninety days of the date of entry of the final order concluding the proceeding to be reopened, and they limit a party to one motion to reopen. However, these temporal and numerical limitations do not apply where a petitioner moves

[t]o apply or reapply for asylum or withholding of deportation based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.

8 C.F.R. ยง 1003.2(c)(3)(ii). Because Liem's motion to reopen at issue in this case falls under this provision, he was required to provide evidence of materially changed conditions in Indonesia from the time of his merits hearing in 2003 to the time of ...


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