United States Court of Appeals
For the First Circuit
No. 05-1264
SITI MARYAM; JAMAL HAJI GILING,
Petitioners,
v.
ALBERTO GONZALES,
Attorney General of the United States,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Selya, Lynch, and Lipez, Circuit Judges.
H. Raymond Fasano and Madeo & Fasano, on brief for
petitioners.
Leslie McKay, Attorney, Office of Immigration Litigation,
Peter D. Keisler, Assistant Attorney General, Civil Division, and
Terri J. Scadron, Assistant Director, on brief for respondent.
August 31, 2005
LYNCH, Circuit Judge. Petitioners Siti Maryam and Jamal
Haji Giling,1 a married couple, are natives and citizens of
Indonesia. They seek review of an order of the Board of
Immigration Appeals (BIA) denying their motion to reopen
proceedings to apply for asylum, withholding of removal, and
protection under the Convention Against Torture (CAT). Because the
BIA's decision did not constitute an abuse of discretion, we deny
the petition for review.
I.
Petitioners entered the United States with visitors'
visas. Each petitioner's permission to remain in the country
expired, and on August 13, 2001, removal proceedings against
petitioners were initiated by the filing of Notices to Appear.
Petitioners were charged with removability for remaining longer
than permitted following admission as nonimmigrants. On November
1, 2001, petitioners conceded removability, but sought asylum,
withholding of removal, and protection under the CAT. On May 14,
2002, there was a hearing on these requests for relief. The IJ
pretermitted petitioners' application for asylum as untimely.
Finding that the Indonesian government did not sanction persecution
of ethnic Chinese persons -- a class of which petitioner Maryam is
1
The record is inconsistent on the spelling of the latter
petitioner's name. It occasionally appears as Jamal Argi Giliang.
This court will employ the spelling that appears in the briefs
before it.
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a member -- the IJ also denied their applications for withholding
of removal and for protection under the CAT.
Petitioners timely appealed the IJ's decision to the BIA.
On November 28, 2003, the BIA summarily affirmed. Petitioners
petitioned this court for review of that summary affirmance, but
their petition was barred as untimely.
On October 12, 2004, petitioners filed a motion to reopen
with the BIA. They argued that reopening was appropriate in light
of changed circumstances in Indonesia. In particular, petitioners
argued that Indonesia had seen growing violence by extremist
Muslims against Christians, and that as moderate Muslims, they
would be in danger if they returned.
The BIA denied the motion to reopen on February 10, 2005.
It found that petitioners had failed to show a change in country
conditions that materially affected their claim for asylum and
withholding of removal. The BIA noted that most of petitioners'
evidence went to violence against Christians; that to the extent
the evidence pertained to violence against Muslims, it showed only
isolated events that did not target mosques or moderate Muslims
(for instance, some Muslims were "indirectly injured" during
attacks on Christian churches); that the rise -- if any -- of
Islamic norms in Indonesian civil society had not been shown to
constitute persecution against moderate Muslims; and that
generalized disorder or violence in Indonesia did not constitute
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grounds for asylum, withholding of removal, or protection under the
CAT. The BIA also noted that the Indonesian government was engaged
in efforts to reduce religious conflict.
Following the denial of their request to reopen,
petitioners timely filed this petition for review.2
II.
A motion to reopen "shall state the new facts that will
be proven at a hearing" and "shall not be granted unless it appears
to the [BIA] 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). One basis for
reopening is changed country circumstances. See id.
§ 1003.2(c)(3)(ii); see also id. § 1208.4(a)(4)(i)(A) (defining
"changed circumstances" to include "[c]hanges in conditions in the
applicant's country of nationality" that "materially affect[] the
applicant's eligibility for asylum").
The BIA may deny a motion to reopen on the grounds that
"the movant has not established a prima facie case for the
underlying substantive relief sought." INS v. Abudu, 485 U.S. 94,
2
In their motion to reopen, petitioners also alleged ineffective
assistance of former counsel and requested that, based on this
ineffective assistance, the BIA either reopen the proceedings or
reissue its November 28, 2003 order. In its February 10, 2005
order, the BIA denied this request. In their petition to this
court, petitioners have raised neither the ineffective assistance
claim nor the rejection of their request to reissue. We therefore
consider only the BIA's denial of petitioners' motion to reopen in
light of changed circumstances.
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104 (1988).3 "The decision to grant or deny a motion to reopen .
. . is within the discretion of the [BIA]," and the BIA "has
discretion to deny a motion to reopen even if the party moving has
made out a prima facie case for relief." 8 C.F.R. § 1003.2(a).
This Court reviews a decision by the BIA to deny a motion
to reopen only for abuse of discretion. See Abudu, 485 U.S. at 96;
Maindrond v. Ashcroft, 385 F.3d 98, 100 (1st Cir. 2004). "An abuse
of discretion will be found where the BIA misinterprets the law, or
acts either arbitrarily or capriciously." Wang v. Ashcroft, 367
F.3d 25, 27 (1st Cir. 2004). Petitioners claim that the BIA abused
its discretion by failing to analyze properly the evidence
supporting their claim that "country conditions for moderate
Muslims had worsened." We disagree.
The BIA thoroughly reviewed the evidence offered to show
persecution and carefully -- and correctly -- explained how this
evidence failed to show a "material change in circumstances which
3
Applicants for asylum have the burden of establishing
eligibility, which they may do by, inter alia, showing a well-
founded fear of persecution on account of one of five protected
grounds -- "race, religion, nationality, membership in a particular
social group, or political opinion." 8 C.F.R. § 1208.13(a),
(b)(2)(i)(A). As for withholding of removal, "[t]he burden of
proof is on the applicant . . . to establish that his or her life
or freedom would be threatened in the proposed country of removal"
on account of one of the five protected grounds. Id. § 1208.16(b);
see also 8 U.S.C. § 1231(b)(3)(A), (C). Lastly, with respect to
protection under the CAT, "[t]he burden of proof is on the
applicant . . . to establish that it is more likely than not that
he or she would be tortured if removed to the proposed country of
removal." 8 C.F.R. § 1208.16(c)(2).
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establishes prima facie evidence of persecution . . . on account of
a protected ground." Contrary to petitioners' suggestions, the BIA
did not fail to discuss "background evidence that post-dated the
petitioners' hearing"; rather, it acknowledged this evidence but
found it insufficient to support their claim that they would be
persecuted on the basis of their religious beliefs should they
return to Indonesia.4
The BIA reasonably found that the record contained
essentially no direct evidence of persecution of moderate Muslims,
and that any indirect evidence, based on persecution of Christians,
was too attenuated to be the basis of relief. In petitioners' own
summary of the evidence in their brief to this court, virtually all
of the even arguably state-sanctioned violence is targeted at
Christians. Although this violence may well be "a matter of
growing concern to . . . Muslim moderates," the BIA was hardly
compelled to find that this concern stemmed from a risk of actual
persecution of moderate Muslims themselves. The "growing concern"
of moderate Muslims could be attributable to humanitarian values,
4
The government notes that petitioners largely failed to show
that the conditions they described were new. Although the
government might be correct that much of petitioners' evidence of
violent conditions in Indonesia predated the May 14, 2002 hearing
and decision by the IJ, this fact was not relied upon by the BIA in
its denial of reopening. Rather, the BIA based its decision upon
the ground that even if petitioners had proven a change in country
circumstances, that change was immaterial to their own applications
for relief. As we explain in the text, this conclusion was amply
justified.
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the desire to avoid becoming the accidental victim of an attack on
Christians, or any number of other causes. At least in the absence
of more evidence on this point, it is simply not evident how any
escalation of violence against Christians could be material to a
claim of persecution raised by moderate Muslims. To the extent
that Islamic fundamentalism is on the rise in Indonesia, it is
likewise not obvious how, if at all, moderate Muslims are likely to
be persecuted. At best, petitioners have shown religious
intolerance against non-Muslims -- intolerance that, as the BIA
noted, the Indonesian government is taking steps to counteract.
Lastly, the BIA correctly noted that petitioners' showing
of generalized disorder and even terrorist violence in Indonesia is
insufficient to make them eligible for relief. As this court has
stated, "[g]enerally, evidence of widespread violence and human
rights violations affecting all citizens is insufficient to
establish persecution." Debab v. INS, 163 F.3d 21, 27 (1st Cir.
1998) (quoting Ravindran v. INS, 976 F.2d 754, 759 (1st Cir.
1992)). See also Meguenine v. INS, 139 F.3d 25, 29 (1st Cir. 1998)
("[G]eneral fears (even 'well-founded' ones) of future harm from
political upheaval or terrorist violence are not sufficient to
establish eligibility for asylum under § 208(a) of the [Immigration
and Nationality Act].").
It is clear that the BIA's well-reasoned decision was anything
but arbitrary and capricious. Cf. Maindrond, 385 F.3d at 100
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("Since the BIA offered two rational explanations for the denial of
the motion to reopen, it has not acted arbitrarily and
capriciously, and there was no abuse of discretion.").
III.
Because the BIA's denial of petitioners' motion to reopen was
not an abuse of discretion, the petition for review is denied.
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