In a case that should have far-reaching implications, the Second Circuit Court of Appeals granted a petition for review filed by a Chinese Christian Indonesian whose motion to reopen based on changed country conditions was denied by the Board of Immigration Appeals, BIA. In Ellya Indradjaja v. Holder, the Second Circuit issued a precedent decision that will offer guidance and authority for motions to reopen based on changed country conditions for Chinese Christians in Indonesia.
The issues on appeal:
Did the BIA abuse its discretion in denying the motion to reopen when it required the petitioner to submit an affidavit in support of her motion to reopen?
Yes. In a case of first impression the Second Circuit concluded that the BIA abused its discretion in requiring the petitioner’s affidavit to support the motion to reopen reasoning that there is nothing in the regulation that mandates that the affidavit be submitted. The Second Circuit quoted the relevant regulation reasoning that “[a] motion to reopen . . . be supported by affidavits or other evidentiary material.” (emphasis added by Second Circuit). The Court read this to mean that the regulation “does not mandate that any affidavit be submitted . . .” (emphasis in original).
Did the BIA abuse its discretion in giving little to no weight to an expert’s affidavit on country conditions when the expert did not furnish copies of the primary sources on which he relied in reaching his conclusions?
Yes. The Second Circuit reasoned that there is no rule or regulation that requires an expert to disclose his primary source materials. The Court cited the Federal Rules of Evidence and case law that holds that an expert may rely on primary source materials even if those materials are not admissible in Court.
An important decision:
This holding may revive motions to reopen based on changed country conditions in Indonesia. The Immigration Judge held that past persecution had not been established and at worst the petitioner had suffered discrimination. We note that the Second Circuit explicitly held that the changed country conditions may be material to the pattern and practice of persecution claims for Chinese Christian Indonesians who would not have to show that they would be individually targeted for violence so long as they can show that they are Chinese and Christians.
We applaud the Second Circuit’s decision and its observation that: “We remand this case mindful of the fact that ‘we must always remember the toll that is paid if an when we err’ because ‘each time we wrongly deny a meritorious asylum application . . . we risk condemning an individual to persecution.'”
