on February 6, 2019
Petition for Review of an Order of the Board of Immigration
Appeals (BIA: A079-709-771) Immigration Judge: Honorable
Alberto J. Riefkohl
D. Arden Melanie Berdecia Samuel S. Choi [Argued] Eamon P.
Joyce Sidley Austin Counsel for Petitioner
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
HARDIMAN, SCIRICA, and RENDELL, Circuit Judges.
RENDELL, CIRCUIT JUDGE.
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.
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. 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.
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
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. 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 and referenced several specifically in his
motion to reopen.
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
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
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
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
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.
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.
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).
begin our analysis by reviewing the legal principles at play.
Then, we proceed to the merits of Liem's claim.
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. § 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 ...