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Marsadu v Holder

Case No. 13-1024 (C.A. 1, Apr. 4, 2014)

Petitioners, Nova Flora Marsadu ("Marsadu") and Roly Rondonuwu ("Rondonuwu") (collectively, "Petitioners"), petition for review of the Board of Immigration Appeals' ("BIA") order denying their motion to reopen removal proceedings. Specifically, Petitioners dispute the BIA's finding that they failed to demonstrate a prima facie case for asylum. We disagree with Petitioners, and find that they have failed to demonstrate error sufficient to warrant reopening of their removal proceedings. After careful consideration, we thus deny their petition for review.

I. Background

Petitioners are both native citizens of Indonesia and are of the Christian faith. They have been married since 1997; they have two children together, both of whom were born in the United States. On April 22, 2001, the Department of Homeland Security ("DHS") admitted Rondonuwu as a nonimmigrant B-1 visitor with authorization to remain in the United States until July 21, 2001. On May 7, 2002, the DHS admitted Marsadu as a nonimmigrant B-2 visitor with authorization to remain in the United States until November 6, 2002.

On February 21, 2003, Marsadu submitted an application for asylum, 8 U.S.C. § 1158(a), and withholding of removal, 8 U.S.C. § 1231(b)(3)(A), as well as for relief under Article 3 of the United Nations Convention Against Torture ("CAT"), all based on her fears of being persecuted in Indonesia due to her Christian faith. On April 16, 2003, while Marsadu's application was pending, the DHS placed Rondonuwu in removal proceedings. On September 28, 2004, Rondonuwu filed an application for asylum, mirroring Marsadu's theory on her application for withholding of removal. Thereafter, on August 4, 2006, the DHS also placed Marsadu in removal proceedings. The Immigration Judge ("IJ") consolidated Petitioners' cases and after a hearing on the merits on April 26, 2007, denied all of their claims.


Judge(s): Juan Torruella
Jurisdiction: U.S. Court of Appeals, First Circuit
Circuit Court Judge(s)
William Kayatta, Jr.
Sandra Lynch
Juan Torruella

Petitioner Lawyer(s) Petitioner Law Firm(s)
Thomas Massucci

Respondent Lawyer(s) Respondent Law Firm(s)
Stuart Delery U.S. Department of Justice
Justin Markel U.S. Department of Justice
Carl McIntyre U.S. Department of Justice



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address, and seriously mischaracterized, dr. winters's report. to require a showing of individualized risk of harm, and that the decky was thus presented only as an example of a case where, as petitioners misstate the bia's reasoning. indeed, an constitutes an abuse of discretion. deterioration of those conditions since 2007, up to the year 2012, belong to, had increased since 2009. this argument amounts to for the first circuit faith. on april 16, 2003, while marsadu's application was pending, petitioners' appeal on march 13, 2009. petitioners thereafter that petitioners there had failed to demonstrate a pattern or petitioners are both native citizens of indonesia and are aggression by muslim extremists against christians and other if such evidence is material and was not available . . . at the objectively reasonable. smith, 627 f.3d at 437; 8 c.f.r. § 208.13 a prima facie case for asylum. fesseha v. ashcroft, 333 f.3d 13, determination of country conditions in indonesia in 2012. holder, 622 f.3d 87, 92 (1st cir. 2010) (holding that bia was well his country of origin "because of persecution or a well-founded and specific evidence supporting a fear of individualized decision only on the fact that country conditions were already occurring at the time of petitioners' 2007 asylum hearing. asylum, he must show that he is "unable or unwilling" to return to petitioners' evidence was not individualized to reflect dangers reopen). the citation to decky follows the bia's finding that marsadu's theory on her application for withholding of removal. c.f.r. § 1003.2(c)(2). however, these limitations do not apply to matter of law by requiring that they show an individualized risk of disagree with petitioners, and find that they have failed to 2009 case, in support of its finding that there existed no pattern here, we have not found sufficient proof for a prima facie showing decky we affirmed the bia's denial of asylum, and similarly found in violence in indonesia led by radical islamists against christian than 90 days after the date on which the final administrative succeed on a prima facie case if he shows a pattern of persecution -8- 'pattern or practice' standard "is demanding and in substance in indonesia since 2004, and that acts of religious intolerance irrational way.'" tawadrous v. holder, 565 f.3d 35, 38 (1st cir. her fears of being persecuted in indonesia due to her christian court's findings in decky regarding country conditions in indonesia before 20 (1st cir. 2003) (internal quotation marks omitted) (quoting moved this court to review the bia's denial of the appeal, and on 2009) (quoting tandayu v. mukasey, 521 f.3d 97, 100 (1st cir. a pattern or practice of persecution of christians in indonesia; the complaining party can show that the bia committed an error of letter submitted by petitioner for the purpose of showing changes showing only that that there is an ongoing pattern of persecution therefore, the bia concluded that petitioners had failed to the evidence of country conditions for the years 2007 through 2012 ultimately, the bia addressed the correct issue, examined all of id. on this record, we cannot hold that the bia's conclusion petitioners also claim that the bia failed to properly pattern of persecution against christians in indonesia. none of 113. petitioners protest that the bia improperly cited to decky, a no. 13-1024 against christians in indonesia. in other words, petitioners argue omitted) (emphasis added). accordingly, the bia did not err, and on july 9, 2012, petitioners filed an untimely motion country, provided that his fears are both subjectively genuine and evidence of country conditions, that it was legal error for the bia in general, "an alien may file only one motion to reopen decky v. holder, 587 f.3d 104, 112 (1st cir. 2009)); or (b) he must demonstrate a reasonable likelihood that they would face religious v. holder, 589 f.3d 1, 5 (1st cir. 2009) (internal citation "reasonable likelihood" that he will face future persecution in his thomas v. massucci, on brief for petitioners. conditions, is twofold. petitioners initially contend that the bia on february 21, 2003, marsadu submitted an application it establish a prima facie case for the underlying substantive we review legal conclusions de novo. smith v. holder, 627 f.3d petitioners moved to reopen in 2012. petitioners contend that the to reopen removal proceedings. the bia concluded that petitioners' persecution in the future," li sheng wu v. holder, 737 f.3d 829, -11- litigation, civil division, stuart f. delery, acting deputy was not legal error. little more than a challenge to how the bia weighed the evidence, removal. petitioners thus argue that decky is irrelevant to a the 2007 hearing with the newly proffered evidence, and noted that the bia took into account the evidence before it, and found only a f.3d 97, 99 n.1 (1st. cir. 2008)(citing sharari v. gonzáles, 407 u.s.c. § 1101 (a)(42)(a). a petitioner may demonstrate his "well- ("dhs") admitted rondonuwu as a nonimmigrant b-1 visitor with 2004, rondonuwu filed an application for asylum, mirroring acting on motions to reopen removal proceedings. holder, 622 f.3d 2008)). in conducting this review, we accept the bia's findings of prima facie eligible for asylum due to recent changes in country of persecution against christians in indonesia at the time "intensification or deterioration of [his] country['s] conditions, ii. discussion nova flora marsadu and roly rondonuwu, in country conditions); see also xiao ji chen v. u.s. department of fear of persecution on account of race, religion, nationality, bia's conclusion is unremarkable, especially considering that the similarly situated to the [petitioner] on account of race, removal proceedings . . . and that motion must be filed no later torruella and kayatta, circuit judges. the bia on motions to reopen. le bin zhu, 622 f.3d at 91 ("the bia enjoys a broad measure of latitude in passing upon" motions to found that petitioners provided no proof of an individualized risk visitor with authorization to remain in the united states until of what was stated before. we need not tread the path of deterioration of country conditions." tawadrous, 565 f.3d at 38. assistant attorney general, civil division, department of justice, according to dr. winters, "from 2009 forward the level of violence petitioners marshal, essentially, three arguments on membership in a particular social group. tandayu v. mukasey, 521 the dhs placed rondonuwu in removal proceedings. on september 28, and that they have made out a prima facie case for asylum by of individualized risk of harm, an asylum applicant can only proposition that what immediately follows, serves as exempli gratia "establish[] that there is a pattern or practice in his . . . 20 (1st cir. 2003) (internal citation and quotations omitted) the united nations convention against torture ("cat"), all based on petitioner typically must either: (a) produce "credible, direct, the bia is afforded quite a high level of deference when before it, and concluded that, notwithstanding dr. winters's take law or exercised its judgment in an arbitrary, capricious, or petitioners' cases and after a hearing on the merits on april 26, for a petitioner to establish a prima facie case for change in conditions or circumstances in indonesia material to bia weighed the evidence, articulated that weight, and correctly with the bia to reopen removal proceedings, arguing that they are "petitioners"), petition for review of the board of immigration 104 (1st cir. 2009) for its finding that there is no ongoing arising . . . in the country to which deportation has been ordered, weight afforded to published reports of the department of state speculation, and find it rather obvious that the bia's citation of bia endeavored to do: the bia compared petitioners' evidence from iii. conclusion harm if they were forced to return to indonesia. petitioners petition for review. have two children together, both of whom were born in the united justin r. markel, trial attorney, office of immigration [their] asylum claim." in particular, the bia noted that: indonesia. united states attorney general, unavailable material, evidence." fesseha v. ashcroft, 333 f.3d 13, not their mere continuation." tawadrous, 565 f.3d at 38. thus, a on may 7, 2002, the dhs admitted marsadu as a nonimmigrant b-2 against christians in indonesia; the bia provides no page citation. for asylum, 8 u.s.c. § 1158(a), and withholding of removal, 8 contentions, petitioners relied heavily on an affidavit from torruella, circuit judge. petitioners, nova flora and carl h. mcintyre, assistant director, office of immigration the case of decky v. holder, 587 f.3d 104 (1st cir. 2009). in united states court of appeals a mere statement that radical islamic groups had gained a foothold april 4, 2014 i.n.s. v. abudu, 485 u.s. 94, 104 (1988)). -3- its decision on other evidence in the record, as well as parts of on december 4, 2012, the bia denied petitioners' motion previous hearing." 8 c.f.r. § 1003.2(c)(3)(ii). a petitioner's these theories holds water. 21, 25 (1st cir. 2010). that dr. winters's report did not deliver on the matter, petitioners failed to show an "intensification or ("there are two threshold requirements for a motion to reopen: that membership in a particular social group, or political opinion." 8 practice of persecution against christians in indonesia. id. at for review is denied. -- a pattern or practice of persecution cannot be established. -12- against a particular social group to which he belongs. kho v. bear only upon the state of affairs in 2004 to 2005, the timeline towards religious minorities, one of which petitioners happen to country of nationality . . . of persecution of a group of persons motions to reopen proceedings "based on changed circumstances indonesia were a recent development, as such violence had been appeal. they argue that the bia erroneously characterized the petition for review of an order of report is more succinct than petitioners would have preferred, does october 30, 2009, we denied their request. proceedings. specifically, petitioners dispute the bia's finding petitioners' first argument, that the bia erred in evidentiary detail on record. méndez-barrera v. holder, 602 f.3d -2- for asylum. they insist that the bia should have assessed the (b). to prove that his fears are objectively reasonable, a thereafter, on august 4, 2006, the dhs also placed marsadu in -6- f.3d 467, 474 (1st cir. 2005)). stated otherwise, absent a showing to the bia. the bia affirmed the ij's decision, and denied that is precisely the analysis the bia undertook. the specifically, petitioners argued that there had been a recent rise posed specifically to them; petitioners had failed to demonstrate that petitioners have failed to meet. therefore, their petition of the christian faith. they have been married since 1997; they a likelihood of persecution of all persons in the group." rasiah removal proceedings. the immigration judge ("ij") consolidated 832 (1st cir. 2013) (internal quotation marks omitted) (quoting a pattern of persecution against christians in indonesia. the they complain that the bia reduced the thirty-eight page report to asylum applicant need not necessarily show an individualized risk 2007, denied all of their claims. proceedings. after careful consideration, we thus deny their subsequently, petitioners filed a timely notice of appeal a decision in their favor, and that the bia's description of the substantive relief sought," and (2) it must introduce "previously contend that they need not show any risk of individualized harm, -4- within its discretion in not affording great evidentiary weight to political economy and comparative politics, with an emphasis on that the bia erroneously required petitioners to establish an and, for that reason alone, it is unavailing. cf. le bin zhu v. material evidence."). petitioners argue that the bia erred as a conditions in indonesia that put them at risk of persecution. indonesia's conditions, they still would have needed to establish lynch, chief judge, november 6, 2002. relief sought and that it introduce previously unavailable, may succeed solely on a showing of fear of persecution based on states. on april 22, 2001, the department of homeland security lies largely within the discretion of the ij). furthermore, the dr. jeffrey a. winters, ph.d., an expert in southeast asian authorization to remain in the united states until july 21, 2001. justice, 471 f.3d 315, 342 (1st cir. 2006) (explaining that the 427, 433 (1st cir. 2010). petitioner's motion to reopen must meet two threshold requirements: fact, "as long as they are supported by substantial evidence," and and petitioners did not demonstrate that attacks on christians in a review of the record shows this precisely is what the however brief, and the bia need not parse out its take on every "mere continuation" of the same general conditions present in 2007. differ significantly from those present in 2007. the bia rested minority groups, and that the indonesian government had become political opinion," 8 c.f.r. § 1208.13(b)(2)(iii)(a). because, they assert, such a pattern is clear here, they need go no the citation is preceded by a signal, "[s]ee, e.g.", which, as was myopic in assessing country conditions in indonesia, basing its of harm in order to establish a prima facie case for asylum, and i. background v. persecution if they returned to indonesia. this petition followed. respondent. individualized risk of harm, because regulatory provisions only require a showing of individualized risk of harm if -- and only if petitioners' evidence failed to show a pattern of persecution find that the evidence presented was also insufficient to establish evidence in support of their motion was insufficient to show "a eric h. holder, jr., appeals' ("bia") order denying their motion to reopen removal evidence of "changed circumstances" must demonstrate an denied. petitioners, -9- -7- (1) it must establish "a prima facie case for the underlying litigation, on brief for respondent. even if petitioners had shown a material change in bia incorrectly relied on our decision in decky v. holder, 587 f.3d difficult for christians in 2007, when petitioners first applied legal citation enthusiasts would explain, stands for the weighing and characterizing the evidence of changed country u.s.c. § 1231(b)(3)(a), as well as for relief under article 3 of bia's description of the contents of that report is accurate, not entail a sufficient affront to the broad discretion we afford finally, petitioners aver that the bia abused its relevant to the decky petitioners' claim for withholding of decision was rendered in the proceeding sought to be reopened." 8 dr. winters's report, that indeed could support the conclusion that and intolerance directed at religious minorities has increased at that they failed to demonstrate a prima facie case for asylum. we demonstrate error sufficient to warrant reopening of their removal -5- find it has abused this ample discretion; an exceedingly high bar discretion by relying on purportedly irrelevant case law, namely minority groups was present to a similar degree in 2007. of a pattern of persecution. accordingly, the bia's use of decky -10- of harm -- which they do not dispute -- and only then proceeded to the board of immigration appeals marsadu ("marsadu") and roly rondonuwu ("rondonuwu") (collectively, as described in dr. winters's report. a "denial of a motion to reopen will be upheld 'unless an alarming rate." the bia concluded that these conditions did not further. requires a showing of regular and widespread persecution creating petitioners' claim fails on this front as well. religion, nationality, membership in a particular social group, or keisler, 505 f.3d 50, 54 n.3 (1st cir. 2007). at 91. accordingly, we only meddle in the bia's business where we founded fear of persecution" with evidence establishing a increasingly tolerant of these attacks. to support their

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