FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JUNE 21, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 05-16240

Non-Argument Calendar

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BIA No. A96-114-180

F.N.U. SUSANTO, 

Petitioner,

versus 

U.S. ATTORNEY GENERAL, 

Respondent.

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Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

 (June 21, 2006)

Before CARNES, PRYOR and RONEY, Circuit Judges.

PER CURIAM:

F.N.U. Susanto, through counsel, petitions for review of the Board of

Immigration Appeals’ (“BIA”) decision denying his motion to reopen his
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proceedings regarding his application for asylum and withholding of removal

under the Immigration and Nationality Act (“INA”) and relief under the United

Nations Convention Against Torture and Other Cruel, Inhuman and Degrading

Treatment or Punishment (“CAT”), INA §§ 208, 241, 8 U.S.C. §§ 1158, 1231; 8

C.F.R. § 208.16(c). We grant the petition for review and remand to the BIA so that

it can directly address the “pattern and practice” claim for relief from removal.

On November 20, 2001, Susanto, a native and citizen of Indonesia, was

admitted to the United States as a non-immigrant visitor for pleasure with

authorization to remain in the United States for a temporary period not to exceed

May 19, 2002. On April 15, 2003, Susanto appeared for Special Registration and

was interviewed by an immigration official. He admitted under oath that he failed

to depart the United States on or before May 19, 2002, and he worked without

authorization. Susanto indicated that he wished to apply for asylum because he

feared that he would be physically harmed in Indonesia on account of his Chinese

ethnicity.

 After the usual administrative proceedings, well known to the parties, and

denial of relief by the BIA, Susanto filed a motion to reopen his case and remand

to the Immigration Judge to reconsider eligibility for asylum, withholding of

removal, and relief under CAT based on changed country conditions. He asserted
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that country conditions in Indonesia changed in October 2004, when a new

President and Vice-President were elected with the support of radical Islamic

groups, and their goal was to convert Indonesia into an Islamic state. Susanto’s 

new asylum application, declaration, and exhibits in support of his application

asserted that Muslim violence against Christians significantly increased after the

October 2004 elections, resulting in the closure of churches and attacks on

Christians. Further, he indicated that he feared returning to Indonesia because

Vice-President Yusuf Kalla announced that he would implement state-sponsored

discriminatory business policies against ethnic Chinese Indonesians. 

Susanto cites recent case law, which is not binding on this circuit, to support

this proposition. The Ninth Circuit held in March 2005 that “[w]hile all ethnic

Chinese who remain in Indonesia face some risk of future persecution, two subgroups are particularly at risk,” including Christians, Lolong v. Ashcroft, 400 F.3d

1215, 1217 (9th Cir. 2005). That Court held that an asylum applicant can meet the

burden of showing particularized-risk of persecution in the future by showing that

he is a member of a sub-group that faces a heightened risk of future persecution.

The Court identified ethnic Chinese Christians in Indonesia as one such sub-group. 

Petitioner argues that he is a member of a disfavored group as an ethnic Chinese,

and of a disfavored sub-group, as a Christian. He maintains that the BIA erred in
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ruling that he had to present particularized evidence concerning him individually to

support claim of eligibility for relief from removal.

An applicant can establish a well-founded fear of persecution without

showing that he would be singled out for persecution if 

(A) The applicant establishes that there is a pattern or

practice in his or her country of nationality or, if

stateless, in his or her country of last habitual residence,

of persecution of a group of persons similarly situated to

the applicant on account of race, religion, nationality,

membership in a particular social group, or political

opinion; and

(B) The applicant establishes his or her own inclusion in,

and identification with, such group of persons such that

his or her fear of persecution upon return is reasonable.

8 C.F.R. § 208.13(b)(2)(iii) (asylum); 8 C.F.R. § 208.16(b)(2)(i), (ii) (withholding

of removal).

We review the BIA’s denial of a motion to reopen or reconsider for an abuse

of discretion. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1302 (11th Cir. 2001)

(addressing motion to reopen); Assa’ad v. U.S. Attorney Gen., 332 F.3d 1321, 1341

(11th Cir. 2003) (addressing motion to reconsider). “Judicial review of denials of

discretionary relief incident to deportation proceedings . . . is limited to

determining ‘whether there has been an exercise of administrative discretion and

whether the matter of exercise has been arbitrary or capricious.’” See Garcia-Mir

v. Smith, 766 F.2d 1478, 1490 (11th Cir. 1985) (citation omitted) (addressing a
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motion to reopen). The BIA abuses its discretion when its decision “provides no

rational explanation, inexplicably departs from established policies, is devoid of

any reasoning, or contains only summary or conclusory statements.” Mickeviciute

v. INS, 327 F.3d 1159, 1162 (10th Cir. 2003) (quotation omitted). 

A motion to reopen to apply or reapply for asylum shall state “new facts”

that would be proven at a new hearing, but “shall not be granted unless it appears

to the Board that evidence sought to be offered is material and was not available

and could not have been discovered or presented at the former hearing . . ..” 

8 C.F.R. § 1003.2(c)(1), (c)(3)(ii). 

The BIA’s decision denying Susanto’s motion to reopen does not give us a

proper and sufficient basis for review because it is unclear whether the BIA

properly considered Susanto’s “pattern and practice claim” for relief from removal,

aside from a showing that he would be singled out for persecution.

The BIA stated, “The respondent has not established changed country

conditions in Indonesia for asylum and withholding of removal . . . The

information the respondent has presented consists of general news articles that

have nothing in them related to him.” The juxtaposition of these sentences

suggests that the BIA did not acknowledge that Susanto could have established a

prima facie case for asylum from articles regarding generalized country conditions
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under a pattern and practice theory of asylum eligibility. 

Accordingly, the petition for review is granted and the BIA’s order is

vacated and remanded so that the BIA can specifically consider the motion to

reopen based on Susanto’s pattern and practice claim.

PETITION GRANTED AND CASE REMANDED.