In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 12‐3858
YOHAN BYLLY SALIM,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney
General of the United States,
Respondent.
____________________
Petition for Review of an Order of
the Board of Immigration Appeals.
No. A078‐597‐192
____________________
ARGUED MAY 28, 2013 — DECIDED AUGUST 28, 2013
____________________
Before EASTERBROOK, Chief Judge, and WILLIAMS and
HAMILTON, Circuit Judges.
WILLIAMS, Circuit Judge. Petitioner Yohan Bylly Salim, an
Indonesian citizen, fled his homeland in 2000 and came to
the United States. He sought asylum, withholding of remov‐
al, and relief under the Convention Against Torture on the
ground that he endured several instances of harassment and
2 No. 12‐3858
discrimination as an ethnic Chinese Christian living in Indo‐
nesia. The Immigration Judge (IJ) denied all forms of re‐
quested relief because Salim had failed to show past or fu‐
ture persecution. Salim filed a motion to reopen the proceed‐
ings and the IJ denied it. Salim appealed the IJ’s denial of his
motion to reopen, but the Board of Immigration Appeals
(BIA) dismissed the appeal because Salim offered no new,
previously unavailable evidence and he relied on case law
from outside this circuit. Salim now seeks review of the
BIA’s order denying his motion to reopen. Because Salim’s
motion to reopen did not point to any evidence that was
previously undiscoverable, we conclude that the BIA’s deci‐
sion did not constitute an abuse of discretion. Therefore, we
deny the petition for review.
I. BACKGROUND
Salim is an Indonesian citizen of Chinese ethnicity and
Christian faith. While living in Indonesia as a teenager, Sal‐
im attended private Christian schools but says he endured
ongoing harassment from Muslim students at some of the
nearby public schools because of his Chinese ethnicity. He
was robbed by students from nearby schools for his lunch
money several times, and once a student with a knife threat‐
ened him and punctured his neck. Salim also claims it was
difficult for Chinese individuals and Christians to travel
safely around Jakarta during the period of intense rioting in
1998. He recounts that a number of Chinese businesses were
burned down during that time, though his family’s business
was not harmed.
Salim left Indonesia as a young adult in 2000 and filed a
timely application for asylum, withholding of removal, and
protection under the Convention Against Torture. His appli‐
No. 12‐3858 3
cation was denied. He then appeared before an IJ, conceded
his removability, and renewed his application for asylum. At
a January 2004 hearing before the IJ, Salim testified that he
suffered harassment in Indonesia based on his ethnicity and
religion. The IJ found that his testimony was not credible
and denied the application. Salim appealed to the BIA.
The BIA found that the IJ’s decision was not adequately
supported and remanded the case so that Salim could sub‐
mit additional evidence of conditions in Indonesia. Salim
appeared for a final hearing before a different IJ in February
2010. Salim’s attorney did not present any new evidence of
conditions in Indonesia, but the government presented the
United States Department of State’s 2008 Country Report on
Human Rights Practices in Indonesia. After considering all
of the evidence, the IJ found Salim’s testimony truthful, but
nevertheless concluded that the facts of Salim’s case did not
rise to the level of past persecution. In the IJ’s view, the times
Salim was threatened and robbed by other students on his
way to and from school appeared to be random acts of vio‐
lence. The IJ also concluded that Salim had failed to establish
a well‐founded fear of future persecution. Salim did not pre‐
sent any evidence suggesting that he would be singled out
individually for persecution if returned to Indonesia, and
even though general discrimination against ethnic and reli‐
gious minorities in Indonesia still exists, the IJ noted that in‐
stances of harassment against Chinese people were on the
decline.
Salim did not appeal the IJ’s decision, but filed a motion
to reopen his proceedings. In support of his motion, he filed
over twenty articles about religious tension in Indonesia and
argued that he should qualify for asylum under Ninth Cir‐
4 No. 12‐3858
cuit case law because he is a member of two “disfavored
groups” in Indonesia: ethnic Chinese people and Christians.
The IJ denied the motion, concluding that Salim’s motion
was “nothing more than a late attempt to submit additional
background information on conditions in Indonesia and a
legal argument that has been rejected by the Seventh Circuit
Court of Appeals.” Salim then appealed the denial of his mo‐
tion to reopen to the BIA. The BIA dismissed the appeal,
concluding that Salim failed to present any new evidence
that was previously unavailable or undiscoverable at his
former hearing. This petition for review followed.
II. ANALYSIS
Salim contends on appeal that the BIA’s denial of his mo‐
tion to reopen the proceedings constituted an abuse of dis‐
cretion. To prevail on a motion to reopen, a petitioner must
point to new evidence that “is material and was not availa‐
ble and could not have been discovered or presented at the
former hearing.” 8 C.F.R. § 1003.2(c)(1); see Selimi v. Ashcroft,
360 F.3d 736, 739 (7th Cir. 2004). The BIA has broad discre‐
tion in deciding whether to grant a motion to reopen, and
we will uphold the BIA’s decision unless it was “made with‐
out a rational explanation, inexplicably departed from estab‐
lished policies, or rested on an impermissible basis such as
invidious discrimination against a particular race or group.”
Awad v. Ashcroft, 328 F.3d 336, 341 (7th Cir. 2003).
A. No New Evidence Presented
To support his motion to reopen, Salim submitted nu‐
merous news articles in an attempt to show the extent of dis‐
crimination against Chinese Christians in Indonesia. But the
problem for Salim is that he cannot show that any of this ev‐
No. 12‐3858 5
idence was previously unavailable. As the BIA pointed out,
all but three of the many articles he submitted with his mo‐
tion were dated before February 23, 2010 (the date of the fi‐
nal hearing before the IJ). See Kucana v. Holder, 603 F.3d 394,
396–97 (7th Cir. 2010) (explaining that “[o]nly evidence that
could not have been presented earlier supports a motion to
reopen … and then only to show that risk has increased be‐
cause of changes in country conditions”). And while three
articles that post‐dated his hearing show continuing inter‐
religious tensions in Indonesia, they do not demonstrate
new or changed circumstances suggesting that the govern‐
ment of Indonesia is now unwilling or unable to protect Sal‐
im against the type of harassment of which he complains. See
Ingmantoro v. Mukasey, 550 F.3d 646, 650 (7th Cir. 2008)
(“[T]he acts of private citizens do not constitute persecution
unless the government is complicit in those acts or is unable
or unwilling to take steps to prevent them.”) (citation omit‐
ted).
Salim further argues that the BIA failed to consider a
Ninth Circuit case, Tampubolon v. Holder, 610 F.3d 1056 (9th
Cir. 2010), as “new and material case law” in evaluating his
motion. The petitioners in that case, Protestant Christians,
maintained that they should qualify for withholding of re‐
moval because they had a well‐founded fear of future perse‐
cution if returned to Indonesia. They argued that Christians
are a “disfavored group” in Indonesia, subject to severe dis‐
crimination and violence, and that their membership in that
group made it more likely than not that they would be sin‐
gled out individually for persecution on account of their re‐
ligion. See 8 C.F.R. § 1208.16(b)(2). The Ninth Circuit agreed.
The court explained that “[e]vidence of both individual and
group targeting are relevant to demonstrate the likelihood
6 No. 12‐3858
that a particular individual will be persecuted. Therefore, the
more evidence of group targeting an … applicant proffers,
the less … individually specific evidence she needs.” 610
F.3d at 1062 (citing Wakkary v. Holder, 558 F.3d 1049, 1062–64
(9th Cir. 2009)). According to Salim, Tampubolon constituted
“new evidence” since it was issued after his February 2010
hearing before the IJ and it was the first case to explicitly
hold that Christians in Indonesia are a disfavored group.
Unfortunately for Salim, Tampubolon does not help him for
several reasons.
As an initial matter, a change in case law is not consid‐
ered new “evidence” for purposes of a motion to reopen.
Mungongo v. Gonzales, 479 F.3d 531, 534 (7th Cir. 2007). It is a
motion for reconsideration, as opposed to a motion to reo‐
pen, that asks the agency to consider a change in the law. See
Victor v. Holder, 616 F.3d 705, 709 (7th Cir. 2010) (explaining
that a motion to reconsider “asks the BIA to revisit its deci‐
sion in light of additional legal arguments, a change of law,
or an argument that was overlooked earlier,” whereas “a
motion to reopen does not take issue with the BIA’s decision
at the time it was entered, but instead asks the BIA to re‐
examine its opinion in light of evidence that was unavailable
at the time of the original opinion”).
But more importantly, the “disfavored group” analysis
used in asylum and withholding of removal cases in the
Ninth Circuit is also not “new” or a change in the law. This
approach dates back to at least 1994 in the asylum context.
See Kotasz v. INS, 31 F.3d 847, 853 (9th Cir. 1994); see also Sael
v. Ashcroft, 386 F.3d 922, 927 (9th Cir. 2004) (finding Indone‐
sia’s ethnic Chinese minority a disfavored group). And the
Ninth Circuit’s decision in Wakkary v. Holder (which recog‐
No. 12‐3858 7
nized that Chinese Christians—like Salim—are disfavored in
Indonesia), held that this mode of analysis is applicable in
the withholding of removal context as well. 558 F.3d at 1063–
64. In other words, it is not as if the IJ and BIA did not have
the benefit of a fully developed body of Ninth Circuit case
law on this issue when evaluating Salim’s claims. The fact
that the Ninth Circuit had not yet definitively said that
Christians (who are not Chinese) are also considered a disfa‐
vored group until June 2010 in Tampubolon is beside the
point—the approach being used to evaluate these claims ex‐
isted well before Salim’s February 2010 hearing, and Salim
could have invoked it.
B. Disfavored Group Approach Does Not Apply
Both the IJ and BIA found Tampubolon unhelpful to Sal‐
im’s case not only because it was not evidence and did not
offer anything new, but also because the disfavored group
analysis used in the Ninth Circuit has been expressly reject‐
ed by our circuit. Indeed, several of our cases have rejected
this approach on the grounds that it is a “less stringent” test.
See Ingmantoro, 550 F.3d at 652 n.7 (citing cases); Kaharudin v.
Gonzales, 500 F.3d 619, 625 (7th Cir. 2007) (noting that while
“[t]he Ninth Circuit has deemed ethnic Chinese a disfavored
group in Indonesia, … [w]e previously have considered and
rejected the application of the Ninth Circuit’s ‘disfavored
group’ analysis in the context of withholding removal, and
we decline to revisit the issue in this case.”); Firmansjah v.
Gonzales, 424 F.3d 598, 607 n.6 (7th Cir. 2005) (“This circuit
has not recognized a lower threshold of proof based on
membership in a ‘disfavored group.’”). In light of the con‐
trolling precedent in this circuit, the BIA did not abuse its
discretion in declining to apply Tampubolon.
8 No. 12‐3858
Salim nevertheless invites us to use his case as an oppor‐
tunity to reverse course and hold that the disfavored group
analysis does not create a new test or lower a petitioner’s
burden of proof, but rather simply uses an evidentiary
standard that falls within the established framework of
proving a well‐founded fear of future persecution in both
asylum and withholding of removal cases. Given that Salim
never appealed the IJ’s February 2010 decision on the merits,
we decline the invitation.
But the central question of whether the Ninth Circuit’s
disfavored group approach actually differs from our circuit’s
analysis of these cases in a meaningful way remains. In both
the asylum and withholding of removal context, an appli‐
cant may be eligible for relief if he can demonstrate a well‐
founded fear of future persecution. 8 C.F.R. § 208.13(b)(2)
(using “reasonable possibility” standard in asylum context);
8 C.F.R. § 208.16(b)(2) (using “more likely than not” stand‐
ard in withholding of removal context). A probability of fu‐
ture persecution may be established by either one of two
methods. Under one method, the applicant must show that
“there is a pattern or practice” of persecution against a
group of persons “similarly situated” to the applicant on ac‐
count of a protected ground, and that “his or her own inclu‐
sion in and identification with such group of persons”
makes it “reasonable” or “more likely than not” that his or
her life or freedom would be threatened upon return to that
country. 8 C.F.R. §§ 208.13(b)(2)(iii), 208.16(b)(2)(i)–(ii). We
have said before that in order to use the “pattern or practice”
method, “the persecution of a protected group must be a
systematic, pervasive, or organized effort to kill, imprison,
or severely injure members of the protected group, and this
effort must be perpetuated or tolerated by state actors.”
No. 12‐3858 9
Ingmantoro, 550 F.3d at 651 (citation and internal quotation
marks omitted); see also Banks v. Gonzales, 453 F.3d 449, 452–
53 (7th Cir. 2006) (recognizing that member of persecuted
ethnic and political party had reasonable fear of future per‐
secution in light of pattern or practice of persecution). Salim
does not raise such a claim here.
The second, alternative method of finding future perse‐
cution calls for an individualized assessment of the risk of
harm. Under this method, an applicant must show that there
is a reasonable possibility (in the asylum context) or that it is
more likely than not (in the withholding of removal context)
that he will be “singled out individually” for persecution if
forced to return home. 8 C.F.R. §§ 208.13(b)(2), 208.16(b)(2);
see also Munoz‐Avila v. Holder, 716 F.3d 976, 982–83 (7th Cir.
2013) (reiterating that “the level of overall danger in a coun‐
try is not a sufficient basis to find persecution, and that a pe‐
titioner must demonstrate that he or she is likely to be sin‐
gled out”). This is where the Ninth Circuit’s disfavored
group analysis comes into play. That court has defined a dis‐
favored group as a “group of individuals in a certain coun‐
try or part of a country, all of whom share a common, pro‐
tected characteristic, many of whom are mistreated, and a
substantial number of whom are persecuted, but who are not
threatened by a pattern or practice of systematic persecu‐
tion.” Tampubolon, 610 F.3d at 1060 (citing Wakkary, 558 F.3d
at 1052, 1062) (emphasis added). The idea is that belonging
to a disfavored group is relevant to demonstrating an indi‐
vidualized risk of persecution because “one’s chances of be‐
ing singled out from the general population and subjected to
persecution is often strongly correlated with the frequency
with which others who share the same disfavored character‐
istic are mistreated and persecuted.” Wakkary, 558 F.3d at
10 No. 12‐3858
1063; see also id. at 1064 (“In other words, when asking how
likely it is that an individual applicant will be ‘singled out’
in the future on the basis of his group membership, it is in‐
disputably relevant … how others in his group are treat‐
ed.”).
In theory, one could view the Ninth Circuit’s approach
on this score as a simple recognition that group membership
matters, as it is “an aspect of nearly all asylum claims, not a
special problem limited to pattern or practice cases.” See Ko‐
tasz v. INS, 31 F.3d 847, 853 (9th Cir. 1994). And the INS reg‐
ulations clearly “contemplate the effect of group member‐
ship on an individual’s circumstances by enumerating the
five statutory categories of withholding eligibility.” Kho v.
Keisler, 505 F.3d 50, 55 (1st Cir. 2007). But this approach has
led to significant disagreement among the circuits because it
invites one to question what exactly it seeks to add to the ex‐
isting regulatory regime that is not already covered under
the “pattern or practice” theory of persecution. In practice,
the Ninth Circuit appears to be using a sliding‐scale ap‐
proach to find “the more serious and widespread the threat
to the [disfavored] group in general, the less individualized
the threat of persecution needs to be.” Sael, 386 F.3d at 925.
In Sael, the record showed significant discrimination against
Chinese minorities in Indonesia, but this mistreatment did
not rise to the level of a “pattern or practice” of persecution.
Id. at 929. However, the petitioner did successfully demon‐
strate “the general persecution of ethnic Chinese, sufficient
to characterize their status as ‘disfavored’ in Indonesia,” id.,
and so she only had to establish a “comparatively low level
of individualized risk in order to prove that she has a well‐
founded fear of future persecution.” Id. at 927; see also Wak‐
kary, 558 F.3d at 1064. Essentially, this approach serves as a
No. 12‐3858 11
safety net for those who fall short of establishing a pattern of
practice of persecution, but have shown membership in a
historically mistreated group. See Kho, 505 F.3d at 55 (“A
group may be deemed ‘disfavored’ on the basis of evidence
of mistreatment that is less pervasive and less severe than
that required to establish a pattern or practice of persecu‐
tion.”).
Though we often discuss a petitioner’s membership in a
particular group in the context of assessing an individual‐
ized threat of future persecution, see Escobar v. Holder, 657
F.3d 537, 549 (7th Cir. 2011), we have never held that a peti‐
tioner may put forth less evidence of individualized persecu‐
tion simply by virtue of belonging to a disfavored group.
See, e.g., Zhou Ji Ni v. Holder, 635 F.3d 1014, 1020 (7th Cir.
2011) (denying petition for review where evidence of coun‐
try conditions regarding Chinese repression of Christianity
were “untethered from facts establishing an individualized
risk of persecution”). Instead, we have always required a pe‐
titioner to show “specific, detailed facts supporting the rea‐
sonableness of [his] fear that [he] will be singled out for per‐
secution.” Bhatt v. Reno, 172 F.3d 978, 982 (7th Cir. 1999) (cit‐
ing cases). In reality, the disfavored group approach in the
Ninth Circuit may yield similar or even identical results. See,
e.g., Halim v. Holder, 590 F.3d 971, 978–79 (9th Cir. 2009)
(denying petition for review where petitioner failed to make
the “minimal showing” of individual targeting). But to the
extent that the Ninth Circuit uses “a lower standard for in‐
dividualized fear absent a ‘pattern or practice’ of persecu‐
tion,” Lie v. Ashcroft, 396 F.3d 530, 538 n.4 (5th Cir. 2005), we
must join other circuits that have rejected the disfavored
group approach. See id.; Kho, 505 F.3d at 55; Wijaya v. Gonza‐
les, 227 Fed. Appx. 35, 38 n.1 (2d Cir. 2007) (summary order).
12 No. 12‐3858
Here too, Salim presented no new evidence on reopening to
show his individualized risk of future persecution, and,
therefore, the disfavored group approach would not have
helped him in any event.
III. CONCLUSION
The petition for review is DENIED.