FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

K UR NIAW A N S AL I M , Petitioner
,

v

.

L O R E T TA E. L Y

N C H , Attorney General, Respondent. No. 13-71833

Agency No. A077-302-674

OPINION

On Petition for Review of an Order of the Board of Imm igration Appeals

Argued and Subm itted June 9, 2016 Pasadena, California

Filed August 1, 2016

Before: Stephen Reinhardt and KimMcLane W ardlaw, Circuit Judges, and Edward R. Korm an, * District Judge.

Opinion by Judge Reinhardt

* The Honorable Edward R. Korm an, United S tates District Judge for the Eastern District of New York, sitting by designation.S ALIM V

. L Y N C H 2

SUMMARY * *

Immigration

The p anel granted a pet i t i on for review of the Board o f Imm igrati o n Appeals’ denial o f a m o tion to reopen rem oval p ro ceedings based on changed country conditions concernin g the treatm ent of Christians in Indonesia.

Th e p anel held that the Board im properly evaluat e d petitioner’s subm ission of newly available, m aterial evidence of changed country c onditions in Indonesia, particularly in light of petitioner’s conversion to Catholicism following his 2006 hearing and the chan g e i n the basis of his claim for relief. The p an e l concluded that the Board abused its discretion in concluding that petitioner’s new evidence was “cum u lative” o f the evidence sub mi tt e d at the tim e of the earlier hearing.

The panel also held that the Board erred in its analysis o f petitioner’s indivi dualized risk of f uture persecution, as it failed to consider the evidence relating to that question in the context of his m em

bership in a disfavored group.

The panel rem anded for further proce e d i n gs consistent with its opinion.

** This sum

m ary constitutes no p art o f th e o p i n i on of the court. It h as been prepared by court staff for the convenience of the reader.S ALIM V

. L Y N C H 3

C OUNSEL

David M. Haghighi (argued), L aw Offic e s o f D avid M. Haghighi, Los Angeles, California, for Petitioner.

Tracie N. Jones (argued), Trial Attorney; Ci n dy S

. F errier, Assistant Director; Office of Imm igrat i o n Litigation, Civil Division, United States Departm ent of Jus t ice, W ashington, D.C.; for Respondent.

OPINION

REINHARDT, Circuit Judge:

Kurn iawan Salim (“Salim ”), a native and citizen of Ind o ne sia, petitions for review from the Board o f Imm igration Appeals’ (“BIA”) d enial of his m otion to reopen his asylum and withholding of rem oval proceedings. Salim is

a practicing Catholic, and brings his m otion to reopen due to changes in country conditions for Chr i s t ians in Indonesia since h is initial hearing before an Imm igration Judge (“IJ”) in 2006. W e conclude that the BIA abused its d i s cretion when it denied Salim ’s m otion to reopen as untim ely. Substantial evidence supports h is c laim of changed country conditions, and he has presented sufficient evidence of individualized

r i s k to establish a prim a facie case for the relief sought

. We therefore grant the petition f or review and rem and for further proceedings consistent with this opinion.

I. Factual and Procedural Background

Salim arrived in th e Un ited S tates on a tourist visa on January 22, 20 0 1

. He and his wife are the parents o f twoS ALIM V

. L Y N C H 4

children, ages six and twelve, both of whom were born in the United S tates and are Am erican citizens. Salim has no crim inal record, and since 2004 has worked as a res t aurant

m anager in California.

In 2 003, the D epartme nt of H om eland Security initiated

rem oval proceedings against Salim for having o v erstayed his initial v isa. In response, Salim subm itted an application for asylum
, withholdi n g o f rem oval, and protection under the Conv ention Against Torture (“CAT”) on the basis o f p er secution h e faced in Indonesia d ue to his Chinese ethnicity. On February 22, 2 006, the IJ denied Salim ’s asylum application as untim ely, and rejected his withholding o f

rem oval and CAT claim s. The BIA affirm ed this decision on Septem ber 26, 2007.

Salim then appealed to this court, which rem anded to the BIA in light of our h o l di n g in Wakkary v. Holder
, 558 F.3d 1049 (9th Cir. 2009), that an asylum applicant’s m em b ership in a disfavored group is relevant to his re quest for withholding of rem oval. On rem and, the BIA again d en i e d Salim ’s application f

o r withholding o f rem oval, concluding th at S alim h ad not dem onstrated a sufficient individualized risk of persecution on account o f his Chinese ethnici ty

. On October 15, 2012 this court up h e l d the BIA decision in an unpublished m em oran dum disposition. Salim v. H older
, 483 F. App’x 386 (9th Cir. 2012) (unpublished).

The case com es back before us today after Salim m oved to reopen his imm igration pr o c e e d ings in March o f 2013. While a m otion to reopen m ust generally be fi l ed n o later than 90 days after a fi n a l rem oval decision, 8 C.F.R. § 1003.2(c)(2), the deadline does not apply to applications o r reapplications for asylum or withholding of rem oval that areS ALIM V

. L Y N C H 5

“based on changed circum stances arising in the country o f nationality.” 8 C.F.R. § 1003(c)(3)(ii). Salim filed his m otion pursuant to this “changed country conditions” exception.

In the tim e between his previous hearing in 2006 and his

m otion to reopen in 2013, Salim converted from Buddhism to Catholicism

. In light o f h is conversion, Salim stated that he sought to reopen his asylum claim because circum stances h ad “changed dram atically” f

o r Indonesian Christians since 2006. S alim exp lain ed th at “ anti-C hristian sentiment h a[ s] in creased in the recent m onths” in Indonesia, and that the governm ent

was n o longer taking steps to “m aintain religious freedom

. ” For support, Salim submi tted over 100 pages of evidence docum enting the rising violence against Indonesian Christian

comm unities. S alim additionally presented a sworn personal declaration attesting to his fear of returning to Indonesia as a Catholic, as w ell as a letter from his sister in Jakarta describing the recent targeting of their local church.

On May 8, 2013, in a p age-long opinion, the BIA denied Salim ’s m otion to reopen as untim ely. A ccording to the BIA, Sal i m h a d failed to m eet the changed country conditions exception because the m ate r i a l attached to his m otion was “largely cum

ulative of the evidence presented when this case
was last before the Imm igration Judge.” Furtherm ore, the BIA stated that, “[t]here is nothing in the evidence subm itted that relates specifically to the respondent .” Finally, the B IA noted that while Sa l i m ’s m otion was based on his fear o f persecution as a Catholic, h e had “previously indicat e d that he is a B uddhist.” Salim tim ely petitioned fo r r e v iew o f the BIA’s decision, and the instant petition for review followed.S ALIM V

. L Y N C H 6

II. Standard of Review

W e review the denial of a m otion t o r e open for abuse o f discretion. Perez v. Mukasey
, 516 F.3d 770, 7 7 3 ( 9th Cir. 2008). W e review the BIA’s determ ination of legal questions de novo, and f

actual f indings for substantial evidence. Bhasin v. Gonzales , 423 F.3d 977, 983 (9th Cir. 2005).

III. Analysis

A. Changed Country Conditions

Judicial review o f a m otion to reopen serves as a “safety valve” in the a s y l um p rocess. Fernandez v. Gonzales
, 439 F .3d 592, 602 (9th Cir. 2006) (citation om itt e d)

. Such oversight “ensure[s] that the BIA lives by its rules and at least considers new inform ation” bearing on applicants’ need for and right to relief. Pilica v. Ashcroft
, 3 88 F.3d 9 41, 948 (6th Cir. 2 004). S alim ’s case dem onstrates the im portance of this authority. Here, the BI A committed both legal and factual

error when it declared that Salim ’s m otion to reopen, filed on
an entire l y distinct ground f rom his prior request f

or relief,

w as “cum ulative” of the inform ation presented at his p rev io u s hearing.

To m eet the changed country conditions exception, a petitioner’s m otion to reopen m ust present evidence that is “m aterial and was not available and could not have been d is c o vered or presented at the p revious hearing.” 8 C.F.R. § 1003.2(c)(3)(ii). Thus, the changed country conditions

e xception is concerned with two points in tim e: the circum stances of the country at the tim e of th e p etitioner’s p revious hearing, and those at the tim e of the m o t i on t o reopen. The “critic a l question is not whether the allegationsS ALIM V

. L Y N C H 7

bear som e conne c t i o n to a prior application, but rather whether circum stances h av e changed sufficiently” in the country since the prior hearing so that the petitioner now has

a legitim ate claim for asylum

. Malty v. Ashcroft
, 3 8 1 F.3d 942, 945 (9th Ci r

. 2 004). Put otherwise, the evidence subm itted with the m otion to reopen m ust be “ qualitatively d ifferent from the evidence presented at [the] asy l um hearing.” Id.

Salim first filed for as y l um in 2006 because he feared returning to Indonesia d

u e to his Ch i n e s e ethnicity. While Salim ’s initial application included minim al evidence related to the m istreatm ent of Christians in Indonesia, he was at that tim e a Buddhist, and such assertions were therefore no t the basis of his asylum claim

. 1 T he overwhelm ing m ajority o f the evi d e n c e i nstead related to the p ersecution of Salim and his family m em

bers due to their Chinese ethnicity. Now, S alim has converted to C atholicism
, and seeks refuge in this country due to his risk of persecution in Indonesia on account of his Christian faith. As we rece nt l y recognized in Chandra v. Holder
, 751 F. 3 d 1034, 1038 (9th Cir. 2014), changed country condi ti o ns can becom e m aterial due to changes in a petitioner’s personal circum stances, including religious

1 The evidence relating to the persecution of Christians in In d o ne sia submitted with Salim ’s initial asylum application in 2006 was lim ited. It consisted of four articles addressing the t o p i c , m ost of which described isol ated, specific incidents. None of the evidence submitted in 2006 d emonstrates the rising, widespread persecution alleged in Salim ’s m otion to reopen. Indeed, two of the articles reference the “relatively safe” state of Christians and the “Muslim -Christian peace” as of 2004.S ALIM V

. L Y N C H 8

conversion. 2 In this case, the BIA correctly recognized that Salim ’s m o tion to reopen and accom panying application for asylum and other relief were based on his Christian faith, rather than h is Chinese ethnicity. The BIA erred, however, in its assessm ent of the evidence presen ted.

Ac c o rding to the B IA, S alim ’s m otion did not m eet th e changed country conditions exception because the evid e n c e he subm itted was “largely cum ulative” o f that offered when the case was before the IJ in 2006. This reasoning m akes little

sense where, as here, the m o tion 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” from that offered at the earlier heari n g

. Thus, the o nly q uestion that rem ains before the BIA is whether the m otion to reopen dem o nstrate s a change in country conditions with respect to the p etitioner’s current basis for rel ie f. The com p arison to be m ade is not between the m otion to reopen and the previous application, but between the country conditions at the tim e of the instant

m otion, and tho s e at the tim e of the prior hearing. It was therefore legal error f

or the BIA to conclude that Salim ’s

2 Although we decid ed C ha ndra t wo weeks after the briefing was submitte d in this case, neither p arty requested a rem and, nor raised t hat opinion during oral argum ent. The BIA agreed t hat Salim was seeking to reopen his case “on account o f his Christian faith” and, unlike in Chandra
, did not rely o n S alim ’s changed personal circum stances when it d enied h is

m o t i on to reopen as untim ely. Moreover, the record is adequ at e l y developed as to t

he i ssues on which t

he agency ruled. Thus, we conclude that rem and in this case on t he basis of Chandra is not required under I NS

v. Ventura
, 5 37 U

. S. 12 (2002) (per curiam). See Smolniakova v. Gonzales
, 4 22 F.3d 1037, 1052 (9th Cir. 2005) (declining to rem and when the “agency has already brought ‘its expertise t o bear u pon the matter’ and ‘evaluate[d] the evidence’”) (quoting Ventura , 537 U.S. at 17).S ALIM V

. L Y N C H 9

mo t ion to reopen was “cum ulative” o f his 2006 applicati o n

. Analyzed under the correct standard, subs t antial evidence dem onstrates that Salim ’s m otion to reopen m eets the changed country conditions exception.

To support his claim of changed conditions in Indonesia, Salim s ubm itted num erous articles on the m istreatm ent o f Christians. Salim further provided m ultiple reports docum enti n g “an upsurge of religious radicalism ” and describing the growth of an “extrem ist fringe” in recent years. These articles explained that “cases of intolerance are on the rise,” and th at “Christians ha[ve] replaced the Islam ic

m inority sect Ahm adiyah as the group whose re l ig i ous freedom s have been violated the m ost.” There is substantial evidence that these developm ents occurred after 2006, as the reports state that Christians have increasingly been the target of Islam i c e x trem ist m o vem ents in the “past two or three years.”

Beyond the docum entary evid e n c e of increased persecution of Christians generally, Salim also subm itted a 2013 lett e r fr o m his sister, who rem ains in Jakarta. 3 In her letter, S alim ’s sister described the rising fear experienced by his imm ediate family in Indonesia, and warned Salim that he and his wife and children “should not return hom e.” S he is Christian, and explained that in light o f the growing threat o f violence and lack of protection from local police, “Mom and I don’t dare to go to church.” These f ears we r e reiterated in Salim ’s sworn declaration, in which he stated that “m ore and

3 Wh ile Salim ’ s sister and mother remain in Indonesia, his brother was granted asylum in the United States o n May 8, 2012. Sa l im ’s motion to reopen states that his b rother w as granted asylum d ue to the “antiChristian [clim ate] in Indonesia.”S ALIM V

. L Y N C H 10

m ore violent activities towards Catholics/Christians” were happening every day. S alim d escribed an increase in attacks

on Christian worshipers, and stated that th e local police would not provide for his family’s protection if they attended church.

W e have previously found sim ilar evidence sufficient to

m eet the burden of p roof required under the changed country conditions exception. In Malty
, we rem anded the BIA’s denial of an untim e l y m otion to reopen when the petitioner,

a Coptic Christian, was able to show a q ualitative change in the level of persecution in Egypt “both with respect to Coptic Christian s generally and w ith respect to [his] f am ily specifically.” Malty
, 381 F.3d at 946. The petitioner in Malty subm itted a re port d etailing the increased persecution o f Coptic C hristians and a personal declarati o n d escribing the recent intim id at ion o f his f am ily m em

bers who rem ained in Egypt. Id. Fac e d wi th this evidence, the BIA denied the

m otion on the ground that it showed a “m ere continuance o f the previous circums tances.” Id

. W e h eld, however, that the BIA abused its discretion, and concluded that the p etitioner’s

m at e ri a ls were “sufficient to m eet the evidentiary b urden in the m otion to reopen context.” Id

. at 947. 4 In th e present case, the BIA has m ade an error rem arkably sim ilar to the o ne it m ade in Malty

.

4 In Malty
, we noted that many peti t ioners m ay face difficulty in procuring supporting a ffidavits for a m o tion to reopen on t he basis o f changed co untry conditions. W e therefore specifically rejected the need for corroborating affidavits from relatives living outside o f th e United States, and concluded that a m otion to reopen may be supported solely b y “a sworn statem ent from

the m ovant.” 381 F.3d at 947.S ALIM V

. L Y N C H 11

The evidence accom

panying S alim ’s m otion to reopen
m ore than m eets the b urden of proof requi r e d to establish changed country conditions. In Ma lty
, the petitioner subm itted only a single third-party report and his own sworn declaration attesting to increased violence against Christians. Id. at 946–47. Here, S alim has offered hundr ed s o f pages o f

news articles, a letter from his si s t e r who rem ains in Indonesia, an d a sworn declaration stating that he fears returning to I n d o nesia because the conditions for C hristians have “changed dram at i c ally” since he left. Such evidence is suffi ci ent to support a m otion to reopen. Thus, the B IA abus e d i ts discretion when it concluded that the evidence proffered did not “m eaningfully reflect” ch an ged country conditions in Indonesia.

B. Individualized Risk

Having concluded that Salim ’s m otion to reopen m eet s the changed country co n d itions exception, we now turn to Respondent’s contention that Salim did not m ake a sufficient showing of in d i v i dualized risk. Pointing to the line in the BIA’s o pinion stating that “nothing in the evidence subm itted

. . . relates specifically to [Salim ],” Respondent cl aim s that the m otion to reopen was p roperly denied because S alim “does not m ake any m eaningful argum ents that he has an individualized risk” of future p ersecution, and thus could not

overcom e the tim eliness bar.

W e have repeatedly hel d that a m otion to reopen “need

o n ly establish a prim a f acie case for relief, and n eed n o t conclusively establish that [the p etitioner] w arrants relief.” Ordonez v. INS
, 3 45 F.3d 777, 785 (9th Cir. 2003). A p arty dem onstrates prim a facie eligibility for relief “ wh e r e the evidence reveals a reasonable likelihood that the st atutoryS ALIM V

. L Y N C H 12
requirem ents for relief have been satisfied.” Id. (quoting In re S-V-M
, 22 I. & N. Dec. 1 306 (B.I.A. 2000)). The Suprem e Court has also recognized that asylum m ay b e granted where

an applicant d em onstrates a one-in-ten chance of future p er secution. INS v. C

ardoza-Fonseca
, 480 U.S. 421, 4 4 0 (1987). Thus, Salim ’s m otion to reopen m ust es tablish only

a reasonable likelihood that, if returned to Indonesia, he faces at least a o ne-in-ten chance of persecuti on because of his Christian faith.

As an Indonesian Christian, S alim is a m em ber of a disfavored group. Tampubolon v. Holder
, 610 F.3d 1056, 1058 (9th C ir. 2010). Wh ile m em bership in a disfavored group is not by itself sufficient to dem o nstrate eligibility for asylum
, “the ‘m ore serious and widespread the threat’ to the gro up in general, ‘the less individualized the threat o f persecution n eeds to be.’” Sael v. Ashcroft
, 386 F.3d 922, 925 (9th C ir. 2004) (quoting Mgoian v. INS
, 184 F.3d 1 029, 1035 n.4 (9th Cir. 1999)). Christians in Indonesia are “subject to violence and official discrim inatio n , ” a n d the governm ent has largely acquies c e d in their p ersecution by those following “m ilitant exp r e s s i ons of Islam .” Tampubolon
, 610 F

. 3d at 1060. Salim ’s family m em bers who rem ain in Indonesia have been subject to such intim idation, and the m otion to r e op e n alleges that the situation for C hristians continues to deteriorate.

Although the BIA opinion acknowledged that Salim ’s

m otion to reopen was b ased o n his C hristian faith, there is no indication that the BIA applied the disfavored-group analysis to his case. The BIA did not m ention o ur re c ognition o f Indonesian Christians as a persecuted group, or consider the evidence S alim subm itted in light of his group-based claim. The decision instead stated that no evidence “relatesS ALIM V

. L Y N C H 13
specifically” to Salim ’s individualized risk of persecution. Yet this s t at em ent is refuted by the imm ediately preceding sentence, in which the BIA noted th at Salim subm itted a personal declaration and a letter from his fam ily in Jakarta.

Salim ’s m otio n t o reopen explicitly relied upon the “pers o n a l experiences” described by his sister, which he stated “hit[] very close to hom e.” Her le tt er d etailed the recent threats against the family’s local church and their growing inability to freely p ractice their faith. In ignoring the im portance o f Salim ’s statem ent and his sister’s lett e r , the BIA failed to recognize that, just as such e v i dence supports Salim ’s claim of changed country conditions in Indonesia, so too does it dem onstrate 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 m arks om itted), it “m ust show proper consideration of all factors

. . . in determ ining whether to grant a m otion to reopen.” Bhasin v. Gonzales
, 423 F.3 d at 983. In this case, the BIA comm itted legal error wh e n it failed to analyze Salim ’s individualized thr e at of persecution in light of his m em bership in a disfavored group, and instead summ arily c o n cluded that Salim ’s evidence addressed only “general conditions in Indonesia.”

The only other statem ent in the B IA’s opinion that could be read as finding th at Salim did not present sufficient evidenc e t o b e prim a facie eligible for relief is the agency’s observation that “to the extent the evidenc e addresses antiChristian sentim ent, we note that the respond e nt

. . . previously indicated that he is a Buddhist.” Insofar as this line reflects the BIA’s rejection of Salim ’s claim of individualized risk because of doubt about the good faith of his claimto beS ALIM V

. L Y N C H 14

a Christian, this circuit has “long h el d that credibility determ inations o n m otions to reopen are inappropriate.” Bhasin
, 423 F.3d at 986. T h e BI A i s r e quired to credit evidence supporting a m otion to reopen unless it is “inherently unbelievable.” Tadevosyan v. Holder
, 743 F.3d 1250, 1256 (9th Cir. 2 0 14) (citation o m itted). Nothing in the record before the court casts such doubt on Salim ’s conversion to Christianity. 5 Thus, evaluating Salim ’s m otion in light of his status as a m em ber of a disfavored group , substantial evidence does not support a finding by the B IA that Salim failed to d em onstrate sufficient evidence o f individualized risk to m ake a prim a facie case for relief. 6

5 By way of explaining the BIA’s comm ent regarding Salim ’s prior Buddhism
, Respondent alleges that it is “unclear whether Salim is a practicing Christ ian,” and that “[i]n his opening brief, Salim provides confusing statem ents regard i n g his religion.” This argument is an
un a c c eptable characterization of what is clearly a typographical error in Pe titioner’s brief. As Respondent n otes, Salim ’s opening brief conta i n s
a sentence stating that “[t]hough born a Buddhist, he attended Catholic schools and is n ot a p racticing Catholic, as are his wife and children.” However, this line m

ust be read in the context of Salim ’s statem ent shortly afterward regarding his p resent status as a Christian, an d his selfidentification as Christian in his m otion t o reopen and accom panying petition for asylum

. Inde e d
, Respondent’s allegation is entirely contrary to the p remise of Salim ’s claim for re l i e f—h is fear of persecution o n account of his Christian faith. These undisputed fac t s com pel the

con c l usion that the sentence Respondent deem s “confusing” was in f act intended to read he “is n ow a practicing Catholic, as are his w ife an d children.” W e therefore reject any reliance by Respondent on this error.

6 Salim ’s m otion to reopen also asserted that he was eligible f o r withholding of rem oval and relief under the Convention A gainst Torture. Because w e conclude that S alim m ade a prim a facie case for asylum as a
m em ber of a disfavored group, we n eed n ot determine wh e th er he established a prim a facie case for his additional claim s.S ALIM V

. L Y N C H 15

IV. Conclusion

W e conclude that the B IA im properly evaluated Salim ’s subm ission of newly available, m aterial evidence of changed country conditions in Indonesia, particularly i n l ight o f S alim ’s co nv ersion to C atholicism following h is 2 0 0 6 h earing and the change in the b asis of his claim for relief. The Board abused its discretion in concluding that the evidence provided with his m otion to reopen w as “cumulative” of the evidence subm itted at the tim e of the earlier hearing. Likewise, the B IA erred in its analysis of Salim ’s individualized risk, as it failed to c o n sider the evidence relating to that question in the context of his m em

bership in a d i s favored group. Given the Board’s legal errors in rejecting Salim ’s m otion to reopen, we grant his petition for review, and r e man d for further proceedings consistent with this opinion.

PETITION GRANTED AND REMANDED.