PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION
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.
Thompson, Selya, and Kayatta, Circuit Judges.
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.
petitioner, Indra Sihotang, is an Indonesian national and an
evangelical Christian. In his homeland, approximately
eighty-seven percent of the population is Muslim.
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).
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
. 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.
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.
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. 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.
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