United States Court of Appeals For the First Circuit

No. 18-1937

SUSAN SUTARSIM, a/k/a Phan San San; RUDIJANTO LUKMAN; FELCIA LNU; JESSLYN LNU,

Petitioners,

v.

WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before

Lynch, Selya, and Barron, Circuit Judges.

Kerry E. Doyle and Graves & Doyle on brief for petitioners. Laura Halliday Hickein, Trial Attorney, Office of Immigration Litigation, Joseph H. Hunt, Assistant Attorney General, Civil Division, and Shelley R. Goad, Assistant Director, Office of Immigration Litigation, on brief for respondent.

May 1, 2020 LYNCH, Circuit Judge. In 2008, Susan Sutarsim applied

for asylum, withholding of removal, and protection under the

Convention Against Torture ("CAT") for herself, her husband

Rudijanto Lukman, and her two daughters, Felcia and Jesslyn.1 An

immigration judge ("IJ") denied the application in 2011, and the

Board of Immigration Appeals ("BIA") affirmed that denial in 2012.

Six years later, in 2018, Sutarsim filed an untimely motion to

reopen the family's removal proceedings, which the BIA denied.

She now petitions for review of that denial. We deny the petition.

I.

Sutarsim and her family are natives and citizens of

Indonesia. They were admitted to the United States on June 28,

2008, on six-month nonimmigrant visitor visas. On July 8, 2008,

Sutarsim submitted an application for asylum, statutory

withholding of removal, and withholding of removal under the CAT.

The application alleged that the family faced harm in Indonesia

based on their Chinese ethnicity and Buddhist religion. On January

8, 2009, the Department of Homeland Security issued a notice to

appear charging the family as removable under

(a)(1)(B) for having overstayed their visas. In response,

1 Because the claims of Lukman and Sutarsim's two daughters are derivative of Sutarsim's claims, we refer to all four together as "the petitioner."

- 2 - Sutarsim admitted the allegations in the notice to appear and

conceded that the family was removable.

On January 11, 2011, an IJ held a hearing on the merits

of Sutarsim's asylum claim. Sutarsim and Lukman both testified,

and the IJ found them both "generally credibl[e]."

At the hearing, Sutarsim and Lukman testified as

follows. Their family is ethnic Chinese. When Sutarsim was a

child, other children at school would harass her by calling her

Chinese and chasing her. In May 1998, radical Islamists terrorized

the Chinese community in Indonesia. Sutarsim witnessed the

Islamists' riots in Jakarta but was able to get home unharmed.

On March 29, 2007, Sutarsim and Lukman were in their car

and came upon an angry demonstration by an Islamic extremist group.

One demonstrator touched their car, and Lukman rolled down the

window and asked him to be careful. The demonstrator replied,

"What's the problem, you Chinese? Get out." The demonstrators

then attacked the car, breaking a mirror and cracking the front

window. When Lukman then got out of the car, the demonstrators

attacked him, stabbed him, and stole his wallet. Lukman required

stitches on his chest. He later believed that some of the

demonstrators were stalking his house, having found it from the

information in his wallet, as a means of threatening him.

On June 1, 2008, Sutarsim and Lukman were again in their

car and encountered bad traffic. They saw people getting beaten

- 3 - up. Because Sutarsim felt afraid, they turned the car around and

went home. They later learned from the news that they had

encountered another demonstration by the same Islamic extremist

group.

Because of these incidents, the family left Indonesia

for the United States on June 28, 2008. They feared that they

would continue to be the target of ethnic violence if they were to

return to Indonesia.

The IJ denied Sutarsim's application, finding that she

had not established a well-founded fear of persecution. The IJ

found that Sutarsim was not the victim of past persecution because

the May 1998, March 2007, and June 2008 incidents did not "cause[]

harm to [Sutarsim] such as to rise to the level of persecution."

The IJ found that the May 1998 rioting was a manifestation of

"general national unrest" that "was eventually quelled by the

government" and "was not directed at [Sutarsim] in the form of

persecution." As to Lukman, the IJ found that the March 2007

attack on him "might cause [Sutarsim] to have a well-founded fear

of persecution upon her return to Indonesia," but that Lukman had

not submitted an independent asylum application and stayed in

Indonesia for nearly a year after the attack. The IJ found that

"discrimination against ethnic Chinese in Indonesia" was not "so

pervasive and intolerable and either government-directed or

condoned as to be tantamount to persecution." Finally, the IJ

- 4 - found that Sutarsim had not established that it was more likely

than not that she would be tortured if she returned to Indonesia

and that the torture would be inflicted by or with the acquiescence

of a public official.

On January 21, 2011, Sutarsim filed a motion to

reconsider with the IJ, which was denied on January 25, 2011,

without opinion.

Sutarsim then appealed to the BIA both the merits

decision and the denial of the motion to reconsider. On June 20,

2012, the BIA affirmed the IJ's merits decision. It found that

"the incidents [Sutarsim] described, while frightening, did not

rise to the level of persecution because they lacked severity or

they were isolated acts of criminal conduct or lawlessness." It

also found that Sutarsim "failed to show evidence that she was

individually targeted because of her ethnicity." Finally, the BIA

found that Sutarsim had not shown a likelihood that she would be

tortured if she returned to Indonesia. The BIA also affirmed the

denial of the motion to reconsider. It held that Sutarsim had not

produced new material evidence not available at the merits hearing.

On July 19, 2012, Sutarsim filed with the BIA a motion

to reconsider its decision dismissing her appeal of the IJ's denial

of the motion to reconsider. The motion argued that the IJ's

failure to explain the motion's denial was error that required

remand. On October 23, 2012, the BIA granted the motion and

- 5 - remanded the case to the IJ. On January 25, 2013, the IJ again

denied the motion to reconsider. The IJ held that Sutarsim had

not submitted any new evidence that was not available at the time

of the merits hearing.

On February 25, 2013, Sutarsim appealed the second

denial to the BIA. On February 23, 2015, the BIA dismissed the

appeal.

On May 31, 2016, Sutarsim's daughters voluntarily

identified themselves to Immigration and Customs Enforcement

("ICE"), surrendered their Indonesian passports, and submitted to

voluntary monitoring. They were released as part of Operation

Indonesian Surrender, "a humanitarian program initiated by [ICE]"

under which "Indonesian nationals subject to final orders of

removal could make themselves known to ICE and, in ICE's

discretion, receive temporary stays of removal, accompanied by

renewable orders of supervision." Sihotang v. Sessions,

, 49 n.1 (1st Cir. 2018). On February 8, 2017, ICE denied the

daughters' applications for another stay of removal and later

ordered them to report with plane tickets back to Indonesia.

On April 12, 2018, Sutarsim filed with the BIA an

untimely motion to reopen the removal proceedings, alleging that

materially changed conditions in Indonesia excused her failure to

comply with the filing deadline for motions to reopen. The motion

- 6 - alleged that violence against and intolerance of religious

minorities had escalated since 2011.

On August 31, 2018, the BIA denied the motion as

untimely. It found that Sutarsim's evidence did not show a

material change with respect to Chinese Buddhists. Specifically,

the BIA concluded:

The respondents have not shown that an extremist group has directly threatened them or any family member since their hearing in 2011. Although there is some religious violence in Indonesia, the evidence presented with the motion [to reopen] largely reflects ongoing sporadic terrorism and mistreatment of Chinese Christians, as opposed to Buddhists, and is similar to what existed before the respondents' 2011 hearing. Further, the respondents have not demonstrated a pattern or practice of persecution against Chinese Buddhists in Indonesia.

(citations omitted).

On September 28, 2018, Sutarsim timely filed a petition

for review with this court.

II.

"Motions to reopen removal proceedings are contrary to

'the compelling public interests in finality and the expeditious

processing of proceedings' and are thus disfavored." Bbale v.

Lynch,

(1st Cir. 2016) (quoting Roberts v.

Gonzales,

(1st Cir. 2005)). We review a denial of

a motion to reopen for abuse of discretion. See Roberts,

. The petitioner must show that the BIA committed an error

- 7 - of law or acted "in an arbitrary, capricious, or irrational"

manner. Raza v. Gonzales,

(1st Cir. 2007). We

must accept the BIA's factual findings as long as they are

"supported by reasonable, substantial, and probative evidence on

the record considered as a whole." Hasan v. Holder,

(1st Cir. 2012) (quoting Guzman v. INS,

(1st

Cir. 2003)).

Motions to reopen removal proceedings must generally be

filed within ninety days of the final administrative order.

(c)(2). But "a petitioner may file a motion to

reopen at any time if he brings the motion seeking to apply for

asylum based on changed circumstances arising in the country of

nationality." Xin Qiang Liu v. Lynch,

(1st Cir.

2015) (citing

(c)(3)(ii)). To be eligible for

this exception, a petitioner must demonstrate "that the change in

country conditions is material and must support that showing by

evidence that was either unavailable or undiscoverable at the time

of her merits hearing." Nantume v. Barr,

(1st

Cir. 2019) (citing Garcia-Aguilar v. Whitaker,

(1st Cir. 2019)). She must also "show prima facie eligibility for

the substantive relief that she seeks."

(citing Chen v. Lynch,

(1st Cir. 2016)). These requirements apply equally

to a petitioner's claims for asylum, withholding of removal, and

CAT protection.

- 8 - The petitioner argues that the BIA's denial of her motion

to reopen was an abuse of discretion. In doing so, she relies

heavily on two arguments not available to her before the BIA

because they arose after the BIA decision. She first argues that

the BIA has reached "conflicting outcome[s]" in her case and other

"virtually identical cases." She argues that, in August 2018, the

BIA reopened twenty similar cases of individuals and families who

had participated in Operation Indonesian Surrender. From this,

she argues that the BIA's "disparate treatment" in not reopening

her proceedings was arbitrary and capricious.

The cases the petitioner offers are cases in which the

BIA reopened the proceedings of Indonesian citizens who were

Chinese Christians based on new evidence submitted in those

proceedings of worsening conditions for Chinese Christians in

Indonesia. The petitioner argues that she submitted "evidence of

significant radical Muslim groups attacking non-Muslims from

religious minorities in Indonesia." But the BIA stated that

Sutarsim's family is Buddhist, not Christian. It found that the

evidence submitted with Sutarsim's motion to reopen did not

demonstrate changed conditions in Indonesia for Chinese Buddhists.

The BIA's conclusion that Sutarsim had not met her burden to show

- 9 - changed country conditions was far from arbitrary and certainly

not an abuse of discretion.2

The petitioner secondly argues that this court's

decision in Sihotang, which was decided after her motion to reopen

was filed, requires a contrary conclusion. Not so. The petitioner

in Sihotang was an Indonesian national and evangelical Christian

"for whom public proselytizing [wa]s a religious obligation."

. He moved to reopen his asylum proceeding, arguing

that conditions in Indonesia had deteriorated for evangelical

Christians.

. He submitted copious evidence of these

conditions that specifically described risks faced by evangelical

Christians, as compared to other Christians, and to Christians

attempting to practice their faith in public.

. The

BIA denied his motion, finding that "he had shown nothing more

than the persistence of negative conditions for Indonesian

Christians."

. This court vacated the BIA's decision,

holding that the BIA had "wholly failed to evaluate whether . . .

there [wa]s a meaningful distinction between Christians who

2 The petitioner also claims that the BIA reopened proceedings in two other cases "solely because" they involved "named parties in" district court litigation challenging ICE's decision to remove aliens who had previously received stays of removal through Operation Indonesian Surrender. See Devitri v. Cronen,

(D. Mass. 2018). But the government had not responded to the motions to reopen those two cases, and the district court had entered a preliminary injunction staying their removal. Those cases do not bear on the outcome of this case.

- 10 - practice their faith in private and evangelical Christians . . .

for whom public proselytizing is a central tenet."

By

contrast, the petitioner in this case has not submitted any

specific evidence that Buddhists, or Chinese Buddhists, now face

heightened risks in Indonesia. Rather, she points exclusively to

evidence of heightened risks faced by Christians and generalizes

from there that all religious minorities face higher risks.

The petitioner also argues that the BIA's mistaken claim

in its decision that no asylum application was included with the

motion to reopen requires remand. It is true that the BIA's

decision incorrectly states that the petitioner did "not submit[]

a new asylum application with [her] motion" even though a new

application was attached to the motion. But the petitioner points

to no substantive information in the new application that the BIA

ignored, and the application itself appears to include none. The

answers on the application state only "Please See Statement," but

no statement is attached. Even if the BIA failed to consider this

application, the application would have provided no basis for the

agency to reach a different decision on remand.

III.

The petition for review is denied.

- 11 -