United States Court of Appeals 

For the First Circuit 

No. 17-2183 

INDRA SIHOTANG, 

Petitioner, 

v. 

JEFFERSON B. SESSIONS, III, 

ATTORNEY GENERAL, 

Respondent. 

PETITION FOR REVIEW OF AN ORDER OF THE 

BOARD OF IMMIGRATION APPEALS 

Before 

Thompson, Selya, and Kayatta, 

Circuit Judges. 

Jesse H. Thompson, with whom Andrea C. Kramer, Julie A. 

Frohlich, and Kramer Frohlich LLC were on brief, for petitioner. 

Abigail E. Leach, Trial Attorney, Office of Immigration 

Litigation, U.S. Dept. of Justice, with whom Chad A. Readler, 

Acting Assistant Attorney General, Civil Division, Anthony C. 

Payne, Assistant Director, Office of Immigration Litigation, and 

Janette L. Allen, Senior Litigation Counsel, Office of Immigration 

Litigation, were on brief, for respondent. 

August 15, 2018 
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SELYA, Circuit Judge. Motions to reopen — especially 

untimely motions to reopen — are disfavored in immigration cases. 

Consequently, an alien who seeks to reopen removal proceedings out 

of time ordinarily faces a steep uphill climb. This does not mean, 

though, that the mountaintop is entirely beyond reach. The case 

at hand — in which the Board of Immigration Appeals (BIA) 

overlooked a significant factor relevant to the decisional 

calculus — illustrates the point. After careful consideration of 

a tangled record, we grant the petition for judicial review, vacate 

the BIA's denial of the motion to reopen, and remand for further 

proceedings consistent with this opinion. 

The petitioner, Indra Sihotang, is an Indonesian 

national and an evangelical Christian. In his homeland, 

approximately eighty-seven percent of the population is Muslim. 

The petitioner, then 36 years of age, entered the United 

States on a bogus crewmember's visa in 2003 and overstayed. On 

March 26, 2004, federal authorities instituted removal proceedings 

against him pursuant to 8 U.S.C. § 1227(a)(1)(A). After conceding 

removability, the petitioner cross-applied for asylum, withholding 

of removal, and protection under the United Nations Convention 

Against Torture (another form of withholding of removal). 

During his November 2006 removal hearing before an 

immigration judge (IJ), the petitioner testified that he had 

experienced persecution in Indonesia on account of his faith. He 
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described three sets of incidents, which he attributed to his 

religious identity: 

 In 1992, the petitioner and his brother were 

assaulted while riding on a motor bike in Jakarta. 

They sustained serious injuries and received 

medical attention at a nearby hospital. The 

petitioner ascribed this assault to the Christian 

cross emblazoned on the T-shirt he was wearing. 

 In 2002, Muslim extremists committed a series of 

high-profile attacks on Indonesian churches. 

 Later that year, a group of Muslim extremists, 

using a megaphone, succeeded in disbanding a 

religious prayer meeting hosted by the petitioner 

at his home in Jakarta. 

Despite the petitioner's testimony and his documentary 

submissions, the IJ denied the petitioner's application for 

relief, but granted him a two-month voluntary departure window 

"for humanitarian reasons." The BIA dismissed the petitioner's 

appeal on May 14, 2008. The petitioner did not seek judicial 

review of that dismissal. 

Notwithstanding the expiration of the voluntary 

departure period, federal authorities allowed the petitioner to 

remain in the United States under an order of supervision for 
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almost ten years.1 During that interval, the petitioner married 

an Indonesian Christian with ethnic Chinese heritage (an ethnicity 

strongly associated with Christianity in Indonesia). They have 

four American-born children, one of whom has Down syndrome. The 

petitioner abided by the terms of his supervision, worked 

regularly, and was the family's sole source of income. In 

addition, he provided his disabled son with daily physical therapy. 

The world turned upside-down for the petitioner and his 

family on September 7, 2017. At that time, the petitioner went to 

an ICE field office in New York for the purpose of renewing his 

supervision paperwork (as he had done on several prior occasions). 

This time, he was taken into custody by ICE officers. 

On October 12, 2017 — while still in custody — the 

petitioner moved to reopen his removal proceedings. See 8 C.F.R. 

§ 1003.2(c). Because the petitioner's motion was not filed within 

90 days of the final administrative decision in the initial removal 

proceeding, the BIA deemed the motion time-barred. See id. 

§ 1003.2(c)(2). Seeking to avoid this temporal barrier, the 

petitioner averred that country conditions in Indonesia had 

 1 This order of supervision arose out of Operation Indonesian 

Surrender, a humanitarian program initiated by Immigration and 

Customs Enforcement (ICE). Under the program, 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. See 

Devitri v. Cronen, 289 F. Supp. 3d 287, 290 (D. Mass. 2018). 
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changed materially since the time of his merits hearing. See id. 

§ 1003.2(c)(3)(ii). In support, he submitted new evidence in the 

form of published news articles and country conditions reports. 

He also submitted a detailed 66-page affidavit signed by Dr. 

Jeffrey A. Winters, an academician specializing in Indonesian 

political economy, labor, and human rights. 

The BIA gave the petitioner short shrift. In a terse 

one-and-a-half page opinion, the BIA framed the petitioner's claim 

as one of "changed country conditions affecting Indonesian 

Christians, particularly in the increasing influence of extreme 

Islamic groups." It proceeded to deny the petitioner's motion to 

reopen, concluding that conditions in Indonesia had not 

"materially changed since [the 2006 merits] hearing." In the BIA's 

estimation, the petitioner had managed to show only "a continuation 

of previously existing conditions." Although the BIA concluded 

that "Christians in Indonesia may face societal abuses or 

discrimination, and . . . there have been incidents of harm against 

Christians and their places of worship," it nonetheless noted that, 

"millions of Christians continue to live in Indonesia without 

experiencing harm." This timely petition for judicial review 

ensued. We issued a temporary stay of removal on December 1, 2017, 

and supplanted that temporary stay with a more durable stay order 

on February 14, 2018. 
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Our standard of review is familiar. Motions to reopen 

removal proceedings are disfavored because they impinge upon "the 

compelling public interests in finality and the expeditious 

processing of proceedings." Bbale v. Lynch, 840 F.3d 63, 66 (1st 

Cir. 2016) (quoting Roberts v. Gonzales, 422 F.3d 33, 35 (1st Cir. 

2005)). We afford the BIA "wide latitude in deciding whether to 

grant or deny such a motion," id., and judicial review is for abuse 

of discretion, see Sánchez-Romero v. Sessions, 865 F.3d 43, 46 

(1st Cir. 2017). To cross this threshold, the petitioner must 

show that the BIA either "committed an error of law or exercised 

its judgment in an arbitrary, capricious, or irrational manner." 

Bbale, 840 F.3d at 66. 

Whether an abuse of discretion occurs necessarily hinges 

on the facts and circumstances of each particular case. To guide 

this inquiry, we have explained that the BIA may abuse its 

discretion "by neglecting to consider a significant factor that 

appropriately bears on the discretionary decision, by attaching 

weight to a factor that does not appropriately bear on the 

decision, or by assaying all the proper factors and no improper 

ones, but nonetheless making a clear judgmental error in weighing 

them." Murillo-Robles v. Lynch, 839 F.3d 88, 91 (1st Cir. 2016) 

(quoting Henry v. INS, 74 F.3d 1, 4 (1st Cir. 1996)). 

With the standard of review in place, we return to the 

case at hand. To succeed on his motion to reopen, the petitioner 
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had to satisfy two substantive requirements. First, he had to 

"introduce new, material evidence that was not available at the 

original merits hearing." Perez v. Holder, 740 F.3d 57, 62 (1st 

Cir. 2014). Second, he had to "make out 'a prima facie case of 

eligibility for the relief sought.'" Id. (quoting Jutus v. Holder, 

723 F.3d 105, 110 (1st Cir. 2013)). 

In determining whether the petitioner satisfied the 

first requirement, the BIA had to "compare[] the evidence of 

country conditions submitted with the motion to those that existed 

at the time of the merits hearing." Sánchez-Romero, 865 F.3d at 

46 (quoting Xin Qiang Liu v. Lynch, 802 F.3d 69, 76 (1st Cir. 

2015)). To prevail, the petitioner had to demonstrate that 

conditions in Indonesia had "intensified or deteriorated" in some 

material way between November 8, 2006 (the date of the petitioner's 

merits hearing) and October 12, 2017 (the date on which the 

petitioner filed his motion to reopen). Id. The BIA concluded 

that the petitioner failed to satisfy this requirement: he had 

shown nothing more than the persistence of negative conditions for 

Indonesian Christians. That showing, the BIA opined, was 

insufficient to carry the petitioner's burden of proving that his 

new evidence reflected a material change in country conditions.2 

 2 The BIA did not analyze the second requirement. Had it done 

so, it would have had to determine whether the petitioner had made 

a prima facie showing of the substantive elements of the relief 
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See, e.g., Sugiarto v. Holder, 761 F.3d 102, 103-04 (1st Cir. 

2014); Simarmata v. Holder, 752 F.3d 79, 81 (1st Cir. 2014); 

Marsadu v. Holder, 748 F.3d 55, 59 (1st Cir. 2014); Fen Tjong Lie 

v. Holder, 729 F.3d 28, 30-31 (1st Cir. 2013). 

We find the BIA's analysis superficial. For aught that 

appears, the BIA seems to have evaluated the petitioner's motion 

to reopen as if he were a prototypical Indonesian Christian. The 

record, however, belies this assumption. 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 

 

ultimately sought (here, asylum or withholding of removal). See 

Panoto v. Holder, 770 F.3d 43, 46 (1st Cir. 2014). 
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whether attitudes in Indonesia had materially changed with respect 

to persons making public religious statements. 

While it remains true that the BIA need not "dissect in 

minute detail every contention that a complaining party advances," 

Xiao He Chen v. Lynch, 825 F.3d 83, 88 (1st Cir. 2016) (quoting 

Raza v. Gonzales, 484 F.3d 125, 128 (1st Cir. 2007)), it cannot 

turn a blind eye to salient facts. The BIA must fairly appraise 

the record and, in this case, it appears to have completely 

overlooked critical evidence. Indeed, the BIA never even mentioned 

terms remotely resembling "evangelical" or "proselytize" in its 

opinion. So stark a failure to consider significant facts that 

appropriately bear on the discretionary decision about whether to 

grant a motion to reopen is perforce an abuse of discretion. See 

Murillo-Robles, 839 F.3d at 91; Henry, 74 F.3d at 4. 

Nor can we say either that these overlooked facts were 

insignificant or that the BIA's error in disregarding them was 

harmless. The record is 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. In particular, Islamic fundamentalist fervor seems 

to have intensified, such that evangelical Christians may now be 

at special risk in Indonesia. We offer some examples of this 

evidence: 
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 Media reports suggest that Indonesia has been 

moving inexorably away from secular values and 

toward sharia law. For instance, the national 

government codified and enacted sharia principles 

into criminal, economic, and moral legislation in 

2008. 

 That same year, Muslim extremists stormed the 

Arastamar Evangelical School of Theology in the 

middle of the night, wielding spears and hurling 

Molotov cocktails. Eighteen students were 

seriously injured. 

 In 2010, Muslim extremists tried to prevent 

thousands of Christians from gathering for Easter 

mass; the local government responded by supporting 

the extremists and instructing the worshippers to 

forgo the service. 

 Five months later, a pair of marauders beat and 

stabbed two Christian clergymen in broad daylight. 

The assailants were found guilty only of 

"unpleasant conduct" and sentenced to a few months 

in jail. 

 In early 2011, more than 1,500 Muslim extremists 

violently demanded the death sentence for a 
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Christian found guilty of blasphemy. When he 

received the statutory maximum prison sentence but 

was allowed to live, extremists stormed the 

courthouse and burned three churches to the ground. 

 In 2013, the national government introduced a bill 

to broaden the definition of criminal blasphemy 

(which was already "implemented almost exclusively 

in defense of Islam") and increase the maximum 

sentence thereunder. 

 In 2016, several hundred thousand Indonesians 

protested vociferously after the governor of 

Jakarta (a Christian) publicly encouraged 

Indonesians to consider voting for non-Muslims. 

The authorities lost no time in charging the 

governor with violating a blasphemy law that rarely 

had been invoked during the previous three decades. 

The governor was convicted and sentenced to a twoyear prison term. 

 Also in 2016, government officials publicly caned 

a Christian. This broke new ground: it was one of 

the first impositions of sharia punishment on a 

non-Muslim. 

 Later that year, Indonesia's highest Islamic 

council modified a fatwa (religious ban) so that it 
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prohibited Muslims from saying "Merry Christmas" or 

wearing "non-Muslim religious attributes" 

(including Santa hats and reindeer horns) in stores 

and restaurants.3 Hardline vigilante groups — 

sometimes accompanied by Indonesian police — 

"swept" through areas where suspected violations of 

this fatwa were reported. 

 Dr. Winters' affidavit indicates that since 2008, 

"violence and intolerance directed at religious 

minorities has increased at a shocking rate," while 

the "government [has remained] unwilling or unable 

to take firm and decisive action to punish militant 

Muslims." Among other supporting items, Dr. 

Winters cites a 2017 study finding that "the 

frequency of [vigilante] mob attacks actually 

registered a 25 percent increase between 2007 and 

2014." 

 With respect to evangelical Christians, Dr. Winters 

stated that they "face heightened risks because a 

core part of their faith and practice is to go out 

into their communities and 'spread the Gospel,' 

 3 Prior to 2016, this fatwa — originally issued in 1981 — 

explicitly allowed Muslims to say "Merry Christmas" and only 

proscribed Muslim participation in formal Christian rituals (such 

as prayer and mass). 
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which in Indonesia is deemed to be hostile 

proselytizing that leads to [illegal] religious 

conversion." 

 Dr. Winters also pointed out that "[t]he Islamic 

movement to impose exclusionary shari[a] law has 

grown stronger and more radical" since 2008. This 

fact, along with the totality of the other relevant 

circumstances, led him to conclude that "[t]he 

danger to [the petitioner] as an evangelical 

Christian is vastly higher now than it was at the 

end of 2008." 

There is more. The petitioner buttressed the 

evidentiary submissions accompanying his motion to reopen with 

country conditions reports. We previously have noted that State 

Department country conditions reports, though not conclusive, are 

"generally deemed authoritative for purposes of immigration 

proceedings." Pulisir v. Mukasey, 524 F.3d 302, 310 (1st Cir. 

2008). In this case, the country conditions reports made pellucid 

that religious intolerance was a burgeoning problem. To compound 

the problem, the Indonesian government — both at the national and 

local levels — has, according to the reports, increasingly "failed 

to prevent violence, abuse, and discrimination against individuals 

based on their religious belief[s]." 
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We add, moreover, that the reports identified another 

area of growing concern: the authorities "discriminated against 

followers of religious groups that constituted a local minority" 

through arbitrary arrests and charges for blasphemy and insulting 

religion. And even though proselytizing and other attempts at 

religious conversion were criminalized in Indonesia prior to 2006, 

the reports noted a dramatic increase from that time forward in 

persecution (both by the government and by private parties) of 

Indonesians who publicly display their Christianity. 

To be sure, the government tries to pigeonhole the 

petitioner's case as merely another link in a chain of four cases 

in which we have rejected claims by Indonesian Christians that 

country conditions have materially changed. See Sugiarto, 761 

F.3d at 104; Simarmata, 752 F.3d at 82; Marsadu, 748 F.3d at 61; 

Fen Tjong Lie, 729 F.3d at 31. This case, though, is readily 

distinguishable. None of the earlier cases involved an alien who 

held himself out to be an evangelical Christian. Accordingly, the 

religious beliefs of those aliens — and therefore their experiences 

with religious intolerance — were different in kind, not just in 

degree. 

What is more, the factual inquiry in this case covers a 

span (approximately eleven years) that is considerably longer than 

the span considered in any of our earlier cases. We think it is 

plain that the longer the time span, the more inclusive the factual 
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inquiry into whether country conditions have changed. Here, this 

more inclusive factual inquiry reflects a steep rise in intolerance 

from start to finish. 

To cinch matters, this case is of more recent vintage 

than any of the cases relied on by the government. This fact is 

critically important because the record details an especially 

sharp increase in governmental and private persecution of 

Indonesian Christians between 2014 and 2017 — a period not under 

review in any of those prior cases. 

The short of it is that the record reflects a rampingup of religious intolerance, increasing over time, in ways that a 

reasonable observer might find uniquely problematic for 

evangelical Christians. This evidence of steadily deteriorating 

country conditions raises a troubling question as to whether a 

tipping point — a point at which the changes can be said to be 

materially adverse to evangelical Christians — has been reached. 

The BIA should have confronted this question face up and squarely 

and provided a reasoned answer to it. Specifically, it should 

have considered whether, in view of the public nature of the 

petitioner's evangelical faith, country conditions in Indonesia 

had materially changed. Its failure to do so constituted an abuse 

of discretion and undermined its denial of the motion to reopen. 

We need go no further. At this juncture, it would be 

premature for us to attempt to make a definitive determination 
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either as to whether the petitioner has established materially 

changed country conditions vis-à-vis evangelical Christians or as 

to whether he has made a prima facie showing of eligibility for 

the relief ultimately sought. See Bbale, 840 F.3d at 66. It 

suffices for us to hold — as we do — that the BIA abused its 

discretion in neglecting to consider significant facts that may 

have had a bearing on the validity of the petitioner's motion to 

reopen. 

For the reasons elucidated above, we grant the petition 

for judicial review, vacate the order of the BIA, and remand so 

that the BIA may determine, upon due consideration of all the 

relevant evidence, whether the petitioner has shown a material 

change in country conditions and, if so, whether he has made a 

prima facie showing of eligibility for the relief ultimately 

sought. The stay of removal entered by this court on February 14, 

2018, will remain in effect pending further order of this court. 

We retain jurisdiction to the extent necessary to extend, modify, 

dissolve, or ensure compliance with that stay order. 

So ordered.