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Ninth Circuit:
BIA Must Consider Individualized Risk to Asylum-Seekers
Majority Says Board Only Looked at Peril to Christians Deported to Indonesia, Not ‘Evangelical Christians’ Such as Petitioners; VanDyke, in Dissent, Proclaims That Majority Is Nit-Picking, Opinion Is ‘Embarrassing’
By a MetNews Staff Writer
A Ninth U.S. Circuit Court of Appeals panel, over a vigorous dissent, yesterday reversed an order for the deportation of two Indonesians who entered the U.S. lawfully but remained here unlawfully after the permission to visit lapsed, holding that the Board of Immigration Appeals denied their second motion to reopen their applications for asylum without considering the perils faced by “evangelical Christians” in their native land.
District Court Judge Sharon L. Gleason of the District of Alaska, sitting by designation, authored the majority opinion, in which Ninth Circuit Judge Richard Paez joined. Ninth Circuit Judge VanDyke dissented.
The petitioners, Henri Nababan and Harlena Rose Silalahi, came to the United States separately and married here in 2003. They are members of the Seventh Day Adventist (“SDA”) Church.
The Board of Immigration Appeals (“BIA”) dismissed their appeal on April 30, 2010, rejecting their contention that they qualified for asylum under the Convention Against Torture (“CAT”). It found that that they did not establish a “well-founded fear of future persecution,” saying that evidence did “not document widespread mistreatment of Christians” but only showed occasional incidents reflecting antagonism toward Christians in certain parts of Indonesia, adding that “they have not established that they face a ‘unique risk of persecution’ that is ‘distinct from mere membership in a disfavored group.’ ”
2012 Opinion
The Ninth Circuit on Sept. 17, 2012, in a memorandum opinion, denied a petition for review, saying: “Substantial evidence supports the BIA’s conclusion that petitioners did not establish their experiences in Indonesia rose to the level of persecution.”
On Nov. 21, 2012, they moved to reopen on the basis of changed conditions in Indonesia, arguing:
“Anti-Christian sentiment has increased in the recent months.”
The BIA concluded that “violence against Christians in Indonesia is neither systemic nor pervasive, but has continued sporadically over the years.” It found 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.”
2016 Decision
In a split decision, the Ninth Circuit held on Sept. 15, 2016, that “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.” Judge Harry Pregerson (now deceased) dissented.
Undaunted, Nababan and Silalahi filed a second motion to reopen on Jan. 2, 2018, asserting that there are “changed country conditions in Indonesia that materially affect their new leadership roles in the Seventh Day Adventist Church,” and in particular that there has been “an increase in violence against Christian evangelicals perpetrated by Muslim radicals and hardline Islamic groups, whom the Indonesian government supports or fails to suppress.”
The petitioners presented an affidavit from Jeffrey A. Winters, political scientist at Northwestern University who has written extensively on Indonesia, saying that “radical Islam has gained significantly in strength in Indonesia since the end of 2012.” He said that Nababan and Silalahi would be at particular risk there “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.”
An affidavit was also secured from Mark Cammack, a professor at Southwestern Law School, who said the petitioners would face vigilante violence in Indonesia.
The BIA denied the motion on Aug. 28, 2018, saying that the petitioners had not met their “heavy burden” of showing changed conditions.
Evangelical Christians
In his opinion granting the petition for review and remanding to the BIA, Gleason said:
“The BIA correctly recognized that Christians in Indonesia are a disfavored group….It failed, however, to account for Petitioners’ status as evangelical Christians or the evidence they presented indicating that evangelical Christians have experienced a particular increase in violence and persecution, beyond that experienced by Indonesian Christians in general. In recounting the evidence Petitioners submitted with their motion to reopen, the BIA did note that Petitioners were members of the SDA Church, in which a key tenet of their faith is spreading the Gospel. But that appears to be the full extent of the BIA’s consideration of Petitioners’ evangelical faith. The BIA’s analysis repeatedly described the disfavored group at issue as the broader group of ‘Christians in Indonesia.’ ”
The visiting jurist declared: “[W]e hold that the BIA committed legal error because it did not assess the individualized risk of persecution that Petitioners face due to their identity as evangelical Christians.”
Her opinion instructs:
“On remand, the BIA should assess whether country conditions in Indonesia have materially changed for evangelical Christians in particular, as distinct from Christians in general. If the BIA finds materially changed country conditions, the BIA should consider the impact of Petitioners’ recent leadership roles in their church, which the BIA previously characterized as changes in personal circumstances…, and determine whether Petitioners have established prima facie eligibility for asylum, withholding of removal, and relief under the CAT.”
VanDyke’s Dissent
VanDyke dissented in an opinion reflecting exasperation. He said:
“Our circuit’s immigration jurisprudence is a perpetually embarrassing illustration of how tough it is for judges to keep to our proper role, which Congress has narrowly circumscribed, tasking us with monitoring an area of law mostly assigned to the executive branch of government. The majority’s unwarranted reversal in this case is the latest specimen of our playing BIA-for-a-day instead of genuinely deferring to the agency’s decisions.
“Often, I’m baffled why my colleagues strain to prevent removal in some of the cases that come before us. particularly where the petitioners have a disturbing criminal history. But in this case, it’s easy to see why one would want to help Petitioners Henri Nababan and Harlena Rose Silalahi. They present a sympathetic case for asylum, as Judge Pregerson lamented in one of their earlier unsuccessful trips to our court….But following the law and not your heart— particularly when the two diverge—is the hard part of judging. Constrained to the strictly limited role Congress established for us.”
‘Absurdly Fussy’
He went on to say:
“The majority’s emphasis on the term ‘evangelical Christian’ is not just absurdly fussy, it’s also inherently fuzzy. The majority latches onto the term, but never defines what it means. Does the majority mean that ‘evangelical Christians’ are a subgroup of Christianity, akin to the commonly used distinction between, say, Catholics and Protestants? Or does the majority simply mean that ‘evangelical Christians’ refers to any ‘Christians’ who evangelize? If the latter, this broad categorization encompasses the vast majority, if not all, Christians, which would explain why Petitioners’ own experts and record materials treat ‘evangelical Christians’ and ‘Christians’ interchangeably. But if the former, what exactly sets this ill-defined subset of ‘evangelical Christians’ apart from Christians generally, particularly with respect to their risk of persecution in Indonesia?”
The dissenter continued:
“Petitioners and their experts certainly provided nothing about that to the BIA in this case. The majority’s emphasis on “evangelical Christians,” without any explanation as to what it means, leaves the agency and future petitioners at a loss when attempting to ascertain the appropriate analysis for the risk of persecution to “evangelical Christians.” All anyone knows is that a future petitioner really should call himself an ‘evangelical Christian’ going forward, because that has magic power before our court.”
Biting Fingernails
Van Dyke charged that the majority placed undue reliance on the Winters affidavit and distorted it, commenting:
“Simply citing an expert affidavit for its purported imprimatur—and then selectively quoting from that affidavit while ignoring its actual content—cannot be a legitimate basis for circumventing our highly deferential abuse-of-discretion review. Like chewing your fingernails, contorting the arguments and reweighing the evidence that were actually before the BIA in order to reach a desired outcome— especially when operating under a highly deferential standard of review—is a ‘nasty habit’ that judges on our court should at least try to kick….
“But not today, apparently. The majority clings to a myopic focus on the phrase ‘evangelical Christians.” which the record reveals is at most mere semantics and a misrepresentation of the BIA’s decision. Simply because the BIA did not ritualistically chant the precise phrase ‘evangelical Christians’ in its decision cannot be a reason to ignore that the BIA appropriately considered the particular risk that Petitioners might face as Christians who evangelize.”
He maintained that substantial evidence supports the BIA’s decision and that review should be denied.
The case is Nababan v. Garland, 18-72548.
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