FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KURNIAWAN SALIM,

Petitioner,

v.

LORETTA E. LYNCH, Attorney

General,

Respondent.

No. 13-71833

Agency No.

A077-302-674

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted June 9, 2016

Pasadena, California

Filed August 1, 2016

Before: Stephen Reinhardt and Kim McLane Wardlaw,

Circuit Judges, and Edward R. Korman,* District Judge.

Opinion by Judge Reinhardt

* The Honorable Edward R. Korman, United States District Judge for the

Eastern District of New York, sitting by designation.
2 SALIM V. LYNCH

SUMMARY**

Immigration

The panel granted a petition for review of the Board of

Immigration Appeals’ denial of a motion to reopen removal

proceedings based on changed country conditions concerning

the treatment of Christians in Indonesia.

The panel held that the Board improperly evaluated

petitioner’s submission of newly available, material evidence

of changed country conditions in Indonesia, particularly in

light of petitioner’s conversion to Catholicism following his

2006 hearing and the change in the basis of his claim for

relief. The panel concluded that the Board abused its

discretion in concluding that petitioner’s new evidence was

“cumulative” of the evidence submitted at the time of the

earlier hearing.

The panel also held that the Board erred in its analysis of

petitioner’s individualized risk of future persecution, as it

failed to consider the evidence relating to that question in the

context of his membership in a disfavored group.

The panel remanded for further proceedings consistent

with its opinion.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
SALIM V. LYNCH 3

COUNSEL

David M. Haghighi (argued), Law Offices of David M.

Haghighi, Los Angeles, California, for Petitioner.

Tracie N. Jones (argued), Trial Attorney; Cindy S. Ferrier,

Assistant Director; Office of Immigration Litigation, Civil

Division, United States Department of Justice, Washington,

D.C.; for Respondent.

OPINION

REINHARDT, Circuit Judge:

Kurniawan Salim (“Salim”), a native and citizen of

Indonesia, petitions for review from the Board of

Immigration Appeals’ (“BIA”) denial of his motion to reopen

his asylum and withholding of removal proceedings. Salim is

a practicing Catholic, and brings his motion to reopen due to

changes in country conditions for Christians in Indonesia

since his initial hearing before an Immigration Judge (“IJ”) in

2006. We conclude that the BIA abused its discretion when

it denied Salim’s motion to reopen as untimely. Substantial

evidence supports his claim of changed country conditions,

and he has presented sufficient evidence of individualized

risk to establish a prima facie case for the relief sought. We

therefore grant the petition for review and remand for further

proceedings consistent with this opinion.

I. Factual and Procedural Background

Salim arrived in the United States on a tourist visa on

January 22, 2001. He and his wife are the parents of two
4 SALIM V. LYNCH

children, ages six and twelve, both of whom were born in the

United States and are American citizens. Salim has no

criminal record, and since 2004 has worked as a restaurant

manager in California.

In 2003, the Department of Homeland Security initiated

removal proceedings against Salim for having overstayed his

initial visa. In response, Salim submitted an application for

asylum, withholding of removal, and protection under the

Convention Against Torture (“CAT”) on the basis of

persecution he faced in Indonesia due to his Chinese

ethnicity. On February 22, 2006, the IJ denied Salim’s asylum

application as untimely, and rejected his withholding of

removal and CAT claims. The BIA affirmed this decision on

September 26, 2007.

Salim then appealed to this court, which remanded to the

BIA in light of our holding in Wakkary v. Holder, 558 F.3d

1049 (9th Cir. 2009), that an asylum applicant’s membership

in a disfavored group is relevant to his request for

withholding of removal. On remand, the BIA again denied

Salim’s application for withholding of removal, concluding

that Salim had not demonstrated a sufficient individualized

risk of persecution on account of his Chinese ethnicity. On

October 15, 2012 this court upheld the BIA decision in an

unpublished memorandum disposition. Salim v. Holder,

483 F. App’x 386 (9th Cir. 2012) (unpublished).

The case comes back before us today after Salim moved

to reopen his immigration proceedings in March of 2013.

While a motion to reopen must generally be filed no later

than 90 days after a final removal decision, 8 C.F.R.

§ 1003.2(c)(2), the deadline does not apply to applications or

reapplications for asylum or withholding of removal that are
SALIM V. LYNCH 5

“based on changed circumstances arising in the country of

nationality.” 8 C.F.R. § 1003(c)(3)(ii). Salim filed his motion

pursuant to this “changed country conditions” exception.

In the time between his previous hearing in 2006 and his

motion to reopen in 2013, Salim converted from Buddhism to

Catholicism. In light of his conversion, Salim stated that he

sought to reopen his asylumclaim because circumstances had

“changed dramatically” for Indonesian Christians since 2006.

Salimexplained that “anti-Christian sentiment ha[s]increased

in the recent months” in Indonesia, and that the government

was no longer taking steps to “maintain religious freedom.”

For support, Salim submitted over 100 pages of evidence

documenting the rising violence against Indonesian Christian

communities. Salim additionally presented a sworn personal

declaration attesting to his fear of returning to Indonesia as a

Catholic, as well as a letter from his sister in Jakarta

describing the recent targeting of their local church.

On May 8, 2013, in a page-long opinion, the BIA denied

Salim’s motion to reopen as untimely. According to the BIA,

Salim had failed to meet the changed country conditions

exception because the material attached to his motion was

“largely cumulative of the evidence presented when this case

was last before the Immigration Judge.” Furthermore, the

BIA stated that, “[t]here is nothing in the evidence submitted

that relates specifically to the respondent.” Finally, the BIA

noted that while Salim’s motion was based on his fear of

persecution as a Catholic, he had “previously indicated that

he is a Buddhist.” Salim timely petitioned for review of the

BIA’s decision, and the instant petition for review followed.
6 SALIM V. LYNCH

II. Standard of Review

We review the denial of a motion to reopen for abuse of

discretion. Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir.

2008). We review the BIA’s determination of legal questions

de novo, and factual findings for substantial evidence. Bhasin

v. Gonzales, 423 F.3d 977, 983 (9th Cir. 2005).

III. Analysis

A. Changed Country Conditions

Judicial review of a motion to reopen serves as a “safety

valve” in the asylum process. Fernandez v. Gonzales,

439 F.3d 592, 602 (9th Cir. 2006) (citation omitted). Such

oversight “ensure[s] that the BIA lives by its rules and at least

considers new information” bearing on applicants’ need for

and right to relief. Pilica v. Ashcroft, 388 F.3d 941, 948 (6th

Cir. 2004). Salim’s case demonstrates the importance of this

authority. Here, the BIA committed both legal and factual

error when it declared that Salim’s motion to reopen, filed on

an entirely distinct ground from his prior request for relief,

was “cumulative” of the information presented at his previous

hearing.

To meet the changed country conditions exception, a

petitioner’s motion to reopen must present evidence that 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). Thus, the changed country conditions

exception is concerned with two points in time: the

circumstances of the country at the time of the petitioner’s

previous hearing, and those at the time of the motion to

reopen. The “critical question is not whether the allegations
SALIM V. LYNCH 7

bear some connection to a prior application, but rather

whether circumstances have changed sufficiently” in the

country since the prior hearing so that the petitioner now has

a legitimate claim for asylum. Malty v. Ashcroft, 381 F.3d

942, 945 (9th Cir. 2004). Put otherwise, the evidence

submitted with the motion to reopen must be “qualitatively

different from the evidence presented at [the] asylum

hearing.” Id.

Salim first filed for asylum in 2006 because he feared

returning to Indonesia due to his Chinese ethnicity. While

Salim’s initial application included minimal evidence related

to the mistreatment of Christians in Indonesia, he was at that

time a Buddhist, and such assertions were therefore not the

basis of his asylum claim.

1 The overwhelming majority of the

evidence instead related to the persecution of Salim and his

family members due to their Chinese ethnicity. Now, Salim

has converted to Catholicism, and seeks refuge in this country

due to his risk of persecution in Indonesia on account of his

Christian faith. As we recently recognized in Chandra v.

Holder, 751 F.3d 1034, 1038 (9th Cir. 2014), changed

country conditions can become material due to changes in a

petitioner’s personal circumstances, including religious

1 The evidence relating to the persecution of Christians in Indonesia

submitted with Salim’s initial asylum application in 2006 was limited. It

consisted of four articles addressing the topic, most of which described

isolated, specific incidents. None of the evidence submitted in 2006

demonstrates the rising, widespread persecution alleged in Salim’s motion

to reopen. Indeed, two of the articles reference the “relatively safe” state

of Christians and the “Muslim-Christian peace” as of 2004.
8 SALIM V. LYNCH

conversion.2In this case, the BIA correctly recognized that

Salim’s motion to reopen and accompanying application for

asylum and other relief were based on his Christian faith,

rather than his Chinese ethnicity. The BIA erred, however, in

its assessment of the evidence presented.

According to the BIA, Salim’s motion did not meet the

changed country conditions exception because the evidence

he submitted was “largely cumulative” of that offered when

the case was before the IJ in 2006. This reasoning makes little

sense where, as here, the motion to reopen presents a different

basis for relief than was relied upon during the prior hearing.

In such cases, the evidence related to the new claim for relief

is necessarily “qualitatively different” fromthat offered at the

earlier hearing. Thus, the only question that remains before

the BIA is whether the motion to reopen demonstrates a

change in country conditions with respect to the petitioner’s

current basis for relief. The comparison to be made is not

between the motion to reopen and the previous application,

but between the country conditions at the time of the instant

motion, and those at the time of the prior hearing. It was

therefore legal error for the BIA to conclude that Salim’s

2 Although we decided Chandra two weeks after the briefing was

submitted in this case, neither party requested a remand, nor raised that

opinion during oral argument. The BIA agreed that Salim was seeking to

reopen his case “on account of his Christian faith” and, unlike in Chandra,

did not rely on Salim’s changed personal circumstances when it denied his

motion to reopen as untimely. Moreover, the record is adequately

developed as to the issues on which the agency ruled. Thus, we conclude

that remand in this case on the basis of Chandra is not required under INS

v. Ventura, 537 U.S. 12 (2002) (per curiam). See Smolniakova v.

Gonzales, 422 F.3d 1037, 1052 (9th Cir. 2005) (declining to remand when

the “agency has already brought ‘its expertise to bear upon the matter’ and

‘evaluate[d] the evidence’”) (quoting Ventura, 537 U.S. at 17).
SALIM V. LYNCH 9

motion to reopen was “cumulative” of his 2006 application.

Analyzed under the correct standard, substantial evidence

demonstrates that Salim’s motion to reopen meets the

changed country conditions exception.

To support his claim of changed conditions in Indonesia,

Salim submitted numerous articles on the mistreatment of

Christians. Salim further provided multiple reports

documenting “an upsurge of religious radicalism” and

describing the growth of an “extremist fringe” in recent years.

These articles explained that “cases of intolerance are on the

rise,” and that “Christians ha[ve] replaced the Islamic

minority sect Ahmadiyah as the group whose religious

freedoms have been violated the most.” There is substantial

evidence that these developments occurred after 2006, as the

reports state that Christians have increasingly been the target

of Islamic extremist movements in the “past two or three

years.”

Beyond the documentary evidence of increased

persecution of Christians generally, Salim also submitted a

2013 letter from his sister, who remains in Jakarta.3In her

letter, Salim’s sister described the rising fear experienced by

his immediate family in Indonesia, and warned Salim that he

and his wife and children “should not return home.” She is

Christian, and explained that in light of the growing threat of

violence and lack of protection from local police, “Mom and

I don’t dare to go to church.” These fears were reiterated in

Salim’s sworn declaration, in which he stated that “more and

 

3 While Salim’s sister and mother remain in Indonesia, his brother was

granted asylum in the United States on May 8, 2012. Salim’s motion to

reopen states that his brother was granted asylum due to the “antiChristian [climate] in Indonesia.”
10 SALIM V. LYNCH

more violent activities towards Catholics/Christians” were

happening every day. Salim described an increase in attacks

on Christian worshipers, and stated that the local police

would not provide for his family’s protection if they attended

church.

We have previously found similar evidence sufficient to

meet the burden of proof required under the changed country

conditions exception. In Malty, we remanded the BIA’s

denial of an untimely motion to reopen when the petitioner,

a Coptic Christian, was able to show a qualitative change in

the level of persecution in Egypt “both with respect to Coptic

Christians generally and with respect to [his] family

specifically.” Malty, 381 F.3d at 946. The petitioner in Malty

submitted a report detailing the increased persecution of

Coptic Christians and a personal declaration describing the

recent intimidation of his family members who remained in

Egypt. Id. Faced with this evidence, the BIA denied the

motion on the ground that it showed a “mere continuance of

the previous circumstances.” Id. We held, however, that the

BIA abused its discretion, and concluded that the petitioner’s

materials were “sufficient to meet the evidentiary burden in

the motion to reopen context.” Id. at 947.4

In the present

case, the BIA has made an error remarkably similar to the one

it made in Malty.

4

In Malty, we noted that many petitioners may face difficulty in

procuring supporting affidavits for a motion to reopen on the basis of

changed country conditions. We therefore specifically rejected the need

for corroborating affidavits from relatives living outside of the United

States, and concluded that a motion to reopen may be supported solely by

“a sworn statement from the movant.” 381 F.3d at 947.
SALIM V. LYNCH 11

The evidence accompanying Salim’s motion to reopen

more than meets the burden of proof required to establish

changed country conditions. In Malty, the petitioner

submitted only a single third-party report and his own sworn

declaration attesting to increased violence against Christians.

Id. at 946–47. Here, Salim has offered hundreds of pages of

news articles, a letter from his sister who remains in

Indonesia, and a sworn declaration stating that he fears

returning to Indonesia because the conditions for Christians

have “changed dramatically” since he left. Such evidence is

sufficient to support a motion to reopen. Thus, the BIA

abused its discretion when it concluded that the evidence

proffered did not “meaningfully reflect” changed country

conditions in Indonesia.

B. Individualized Risk

Having concluded that Salim’s motion to reopen meets

the changed country conditions exception, we now turn to

Respondent’s contention that Salim did not make a sufficient

showing of individualized risk. Pointing to the line in the

BIA’s opinion stating that “nothing in the evidence submitted

. . . relates specifically to [Salim],” Respondent claims that

the motion to reopen was properly denied because Salim

“does not make any meaningful arguments that he has an

individualized risk” of future persecution, and thus could not

overcome the timeliness bar.

We have repeatedly held that a motion to reopen “need

only establish a prima facie case for relief, and need not

conclusively establish that [the petitioner] warrants relief.”

Ordonez v. INS, 345 F.3d 777, 785 (9th Cir. 2003). A party

demonstrates prima facie eligibility for relief “where the

evidence reveals a reasonable likelihood that the statutory
12 SALIM V. LYNCH

requirements for relief have been satisfied.” Id. (quoting In re

S-V-M, 22 I. & N. Dec. 1306 (B.I.A. 2000)). The Supreme

Court has also recognized that asylum may be granted where

an applicant demonstrates a one-in-ten chance of future

persecution. INS v. Cardoza-Fonseca, 480 U.S. 421, 440

(1987). Thus, Salim’s motion to reopen must establish only

a reasonable likelihood that, if returned to Indonesia, he faces

at least a one-in-ten chance of persecution because of his

Christian faith.

As an Indonesian Christian, Salim is a member of a

disfavored group. Tampubolon v. Holder, 610 F.3d 1056,

1058 (9th Cir. 2010). While membership in a disfavored

group is not by itself sufficient to demonstrate eligibility for

asylum, “the ‘more serious and widespread the threat’ to the

group in general, ‘the less individualized the threat of

persecution needs to be.’” Sael v. Ashcroft, 386 F.3d 922, 925

(9th Cir. 2004) (quoting Mgoian v. INS, 184 F.3d 1029, 1035

n.4 (9th Cir. 1999)). Christians in Indonesia are “subject to

violence and official discrimination,” and the government has

largely acquiesced in their persecution by those following

“militant expressions of Islam.” Tampubolon, 610 F.3d at

1060. Salim’s family members who remain in Indonesia have

been subject to such intimidation, and the motion to reopen

alleges that the situation for Christians continues to

deteriorate.

Although the BIA opinion acknowledged that Salim’s

motion to reopen was based on his Christian faith, there is no

indication that the BIA applied the disfavored-group analysis

to his case. The BIA did not mention our recognition of

Indonesian Christians as a persecuted group, or consider the

evidence Salim submitted in light of his group-based claim.

The decision instead stated that no evidence “relates
SALIM V. LYNCH 13

specifically” to Salim’s individualized risk of persecution.

Yet this statement is refuted by the immediately preceding

sentence, in which the BIA noted that Salim submitted a

personal declaration and a letter from his family in Jakarta.

Salim’s motion to reopen explicitly relied upon the

“personal experiences” described by his sister, which he

stated “hit[] very close to home.” Her letter detailed the

recent threats against the family’s local church and their

growing inability to freely practice their faith. In ignoring the

importance of Salim’s statement and his sister’s letter, the

BIA failed to recognize that, just as such evidence supports

Salim’s claim of changed country conditions in Indonesia, so

too does it demonstrate his heightened individualized risk if

returned. While the BIA “does not have to write an exegesis

on every contention,” Lopez v. Ashcroft, 366 F.3d 799, 807

n.6 (9th Cir. 2004) (internal quotation marks omitted), it

“must show proper consideration of all factors . . . in

determining whether to grant a motion to reopen.” Bhasin v.

Gonzales, 423 F.3d at 983. In this case, the BIA committed

legal error when it failed to analyze Salim’s individualized

threat of persecution in light of his membership in a

disfavored group, and instead summarily concluded that

Salim’s evidence addressed only “general conditions in

Indonesia.”

The only other statement in the BIA’s opinion that could

be read as finding that Salim did not present sufficient

evidence to be prima facie eligible for relief is the agency’s

observation that “to the extent the evidence addresses antiChristian sentiment, we note that the respondent . . .

previously indicated that he is a Buddhist.” Insofar as this line

reflects the BIA’s rejection of Salim’s claimof individualized 

risk because of doubt about the good faith of his claim to be
14 SALIM V. LYNCH

a Christian, this circuit has “long held that credibility

determinations on motions to reopen are inappropriate.”

Bhasin, 423 F.3d at 986. The BIA is required to credit

evidence supporting a motion to reopen unless it is

“inherently unbelievable.” Tadevosyan v. Holder, 743 F.3d

1250, 1256 (9th Cir. 2014) (citation omitted). Nothing in the

record before the court casts such doubt on Salim’s

conversion to Christianity.5 Thus, evaluating Salim’s motion

in light of his status as a member of a disfavored group,

substantial evidence does not support a finding by the BIA

that Salim failed to demonstrate sufficient evidence of

individualized risk to make a prima facie case for relief.6

5 By way of explaining the BIA’s comment regarding Salim’s prior

Buddhism, Respondent alleges that it is “unclear whether Salim is a

practicing Christian,” and that “[i]n his opening brief, Salim provides

confusing statements regarding his religion.” This argument is an

unacceptable characterization of what is clearly a typographical error in

Petitioner’s brief. As Respondent notes, Salim’s opening brief contains

a sentence stating that “[t]hough born a Buddhist, he attended Catholic

schools and is not a practicing Catholic, as are his wife and children.”

However, this line must be read in the context of Salim’s statement shortly

afterward regarding his present status as a Christian, and his selfidentification as Christian in his motion to reopen and accompanying

petition for asylum. Indeed, Respondent’s allegation is entirely contrary

to the premise of Salim’s claim for relief—his fear of persecution on

account of his Christian faith. These undisputed facts compel the

conclusion that the sentence Respondent deems “confusing” was in fact

intended to read he “is now a practicing Catholic, as are his wife and

children.” We therefore reject any reliance by Respondent on this error.

6 Salim’s motion to reopen also asserted that he was eligible for

withholding of removal and relief under the Convention Against Torture.

Because we conclude that Salim made a prima facie case for asylum as a

member of a disfavored group, we need not determine whether he

established a prima facie case for his additional claims.
SALIM V. LYNCH 15

IV. Conclusion

We conclude that the BIA improperly evaluated Salim’s

submission of newly available, material evidence of changed

country conditions in Indonesia, particularly in light of

Salim’s conversion toCatholicismfollowing his 2006 hearing

and the change in the basis of his claim for relief. The Board

abused its discretion in concluding that the evidence provided

with his motion to reopen was “cumulative” of the evidence

submitted at the time of the earlier hearing. Likewise, the BIA

erred in its analysis of Salim’s individualized risk, as it failed

to consider the evidence relating to that question in the

context of his membership in a disfavored group. Given the

Board’s legal errors in rejecting Salim’s motion to reopen, we

grant his petition for review, and remand for further

proceedings consistent with this opinion.

PETITION GRANTED AND REMANDED.