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Sihotang v. Sessions

United States Court of Appeals, First Circuit

August 15, 2018

INDRA SIHOTANG, Petitioner,
v.
JEFFERSON B. SESSIONS, III, ATTORNEY GENERAL, Respondent.

          PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

          Jesse H. Thompson, with whom Andrea C. Kramer, Julie A. Frohlich, and Kramer Frohlich LLC were on brief, for petitioner.

          Abigail E. Leach, Trial Attorney, Office of Immigration Litigation, U.S. Dept. of Justice, with whom Chad A. Readler, Acting Assistant Attorney General, Civil Division, Anthony C. Payne, Assistant Director, Office of Immigration Litigation, and Janette L. Allen, Senior Litigation Counsel, Office of Immigration Litigation, were on brief, for respondent.

          Before Thompson, Selya, and Kayatta, Circuit Judges.

          SELYA, CIRCUIT JUDGE.

         Motions to reopen - especially untimely motions to reopen - are disfavored in immigration cases. Consequently, an alien who seeks to reopen removal proceedings out of time ordinarily faces a steep uphill climb. This does not mean, though, that the mountaintop is entirely beyond reach. The case at hand - in which the Board of Immigration Appeals (BIA) overlooked a significant factor relevant to the decisional calculus - illustrates the point. After careful consideration of a tangled record, we grant the petition for judicial review, vacate the BIA's denial of the motion to reopen, and remand for further proceedings consistent with this opinion.

         The petitioner, Indra Sihotang, is an Indonesian national and an evangelical Christian. In his homeland, approximately eighty-seven percent of the population is Muslim.

         The petitioner, then 36 years of age, entered the United States on a bogus crewmember's visa in 2003 and overstayed. On March 26, 2004, federal authorities instituted removal proceedings against him pursuant to 8 U.S.C. § 1227(a)(1)(A). After conceding removability, the petitioner cross-applied for asylum, withholding of removal, and protection under the United Nations Convention Against Torture (another form of withholding of removal).

         During his November 2006 removal hearing before an immigration judge (IJ), the petitioner testified that he had experienced persecution in Indonesia on account of his faith. He described three sets of incidents, which he attributed to his religious identity:

. In 1992, the petitioner and his brother were assaulted while riding on a motor bike in Jakarta. They sustained serious injuries and received medical attention at a nearby hospital. The petitioner ascribed this assault to the Christian cross emblazoned on the T-shirt he was wearing.
. In 2002, Muslim extremists committed a series of high-profile attacks on Indonesian churches.
. Later that year, a group of Muslim extremists, using a megaphone, succeeded in disbanding a religious prayer meeting hosted by the petitioner at his home in Jakarta.

         Despite the petitioner's testimony and his documentary submissions, the IJ denied the petitioner's application for relief, but granted him a two-month voluntary departure window "for humanitarian reasons." The BIA dismissed the petitioner's appeal on May 14, 2008. The petitioner did not seek judicial review of that dismissal.

         Notwithstanding the expiration of the voluntary departure period, federal authorities allowed the petitioner to remain in the United States under an order of supervision for almost ten years.[1] During that interval, the petitioner married an Indonesian Christian with ethnic Chinese heritage (an ethnicity strongly associated with Christianity in Indonesia). They have four American-born children, one of whom has Down syndrome. The petitioner abided by the terms of his supervision, worked regularly, and was the family's sole source of income. In addition, he provided his disabled son with daily physical therapy.

         The world turned upside-down for the petitioner and his family on September 7, 2017. At that time, the petitioner went to an ICE field office in New York for the purpose of renewing his supervision paperwork (as he had done on several prior ...


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