Argued: Sept. 13, 2013.
Theodore N. Cox, Law Office of Theodore N. Cox, New York, NY, for Petitioner.
Sabatino F. Leo, Office of Immigration Litigation (Rebekah Nahas and Paul Fiorino, Office of Immigration Litigation, and Stuart F. Delery, Civil Division, on the brief), Washington, D.C., for Respondent.
Before: KATZMANN, Chief Judge, JACOBS, and CARNEY, Circuit Judges.
KATZMANN, Chief Judge.
This case requires us to consider whether the BIA abused its discretion by denying Ellya Indradjaja's (" Indradjaja" or " petitioner" ) motion to reopen proceedings in her immigration case. The BIA rejected her evidentiary submissions because she had not submitted a sworn statement in support of her motion and because her expert witness had not provided copies of the sources on which he relied. For the reasons set forth below, we conclude that the BIA acted arbitrarily and capriciously in attaching consequences to these previously unarticulated requirements in Indradjaja's case. Accordingly, we grant Indradjaja's petition for review, vacate the BIA's decision, and remand for further proceedings consistent with this opinion.
A. Fact Overview
Ellya Indradjaja is a citizen and native of Indonesia. She is a devout Chinese Christian who spent many years in both Indonesia and abroad furthering her religious education. Growing up in Indonesia, she attended the Christus Romani Church, and, after completing college in 1991, she spent two years ministering in Russia and Australia. In the years that followed, she spent time in Indonesia and abroad in pursuit of her education and her faith. Of note, she earned a Certificate in Biblical and Cross-Cultural Studies at the Whole Nation Christian College in England, earned a Master of Arts (Missions) at the Singapore Bible College in Singapore, and did missionary work in Singapore and China.
During that time, however, Indradjaja's pursuit of her faith was troubled, in particular when she ministered to Muslims in Indonesia. After she co-founded a Christian ministry in the year 2000, she was the target of significant " pressures and intimidations because of this [ministry]." App'x 284. For instance, in March, 2002, a Muslim family asked Indradjaja and the ministry's other co-founder to pray and bless the family's house. While the women were praying, other Muslims in the community threw rocks at the house. Indradjaja did not call the police because, based on her prior experiences, she did not believe that the police would help her. She also experienced intimidation, including threats, which at times forced her to cut short worship services. Because of her personal experiences and the violent attacks on Christian ministries throughout Indonesia, she feared for her safety.
In March 2007, Indradjaja came to the United States to visit a friend, who was sick and struggling with her faith, and was lawfully admitted to the United States as a non-immigrant visitor on a B-2 visa. She saw that her Christian friends were not afraid to proselytize in the United States and that she could do so without fear of the harassment and threats that she experienced when ministering in Indonesia. In order to avoid returning to that situation, Indradjaja filed an application for asylum on February 15, 2008.
B. Asylum Proceedings before the Immigration Court
In response to Indradjaja's application for asylum, the Department of Homeland Security (" DHS" ) initiated deportation proceedings against her, charging her as removable under 8 U.S.C. § 1227(a)(1)(B) because she had " remained in the United States for a time longer than permitted." App'x 871. She appeared, as instructed, before the IJ, acknowledged that she had overstayed her visa, and applied for asylum, withholding of removal, and protection under the Convention Against Torture (" CAT" ), on the basis that she feared persecution on the basis of her religion and ethnicity.
In her hearing before the IJ, Indradjaja testified about the threats and harassment she had experienced as a result of being identifiable as an ethnic Chinese and a practicing Christian, as well as the attacks upon Christian churches and worshipers throughout Indonesia. She explained that she was scared to practice her faith and unable to look to the police for protection because, when she had gone to the police in the past, they would not help her. As further support, she submitted over one-hundred articles demonstrating that, during the period between 1998 and 2009, extremist groups forcibly closed and attacked numerous Christian churches and intimidated and used violence against Christians. The IJ found Indradjaja consistent and credible and " sympathize[d] with the respondent's desire to be able to practice her religion ... freely," but found that she had not " establish[ed] [past] persecution within the meaning of the Immigration Act as opposed to discrimination." App'x 230-32. The IJ also found that the attacks against Christian churches were episodic and not systemic and that, therefore, Indradjaja had not established a well-founded fear of future persecution.
Indradjaja timely appealed the IJ's decision to the BIA. In June of 2011, the BIA affirmed, stating that " the events [Indradjaja] described appear to have constituted harassment and discrimination" but " the cumulative effect of these events [did not] rise[ ] to the level of persecution." Id. at 159. The BIA agreed with the IJ that Indradjaja " ha[d] not demonstrated a reasonable possibility that she would be singled out individually for persecution upon her return to Indonesia" and that " [s]he also ha[d] not established a systematic, pervasive or organized pattern or practice of persecution of ethnic Chinese Christians in Indonesia based upon this record." Id. at 159-60. Indradjaja did not seek review of the BIA's decision.
C. Motion to Reopen
In August of 2011, Indradjaja timely filed a motion to reopen her removal proceedings in order to provide " new and previously unavailable evidence" of " dramatically increased levels of violence and persecution against the Chinese Christians in Indonesia." App'x 10. The new evidence included an affidavit from an expert witness and a ...