Circuit Finds BIA Should Have Allowed Asylum Seeker to Present Evidence of Increasing Threats

, New York Law Journal

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A Chinese Christian minister who claims she was threatened and intimidated in Indonesia should have had a chance to present expert testimony on worsening conditions for Christians in that country, the U.S. Court of Appeals for the Second Circuit has held.

A three-judge panel said a Board of Immigration Appeals judge erred when he gave "little, if any, weight" to an expert report on the increased threat to Chinese Christians in Indonesia and it should have allowed the evidence in the asylum application case of Indradjaja v. Holder, 12-1336-ag.

Judges Robert Katzmann (See Profile), Dennis Jacobs (See Profile) and Susan Carney (See Profile) also agreed the appeals board erred when it insisted it could not consider the petition of Minister Ellya Indradjaja to reopen her hearing to present new evidence because the motion was not accompanied by a sworn statement from her.

Indradjaja, an ethnic Chinese, is a citizen and native of Indonesia who cofounded a Christian ministry in 2000. She claims she was subjected to threats and intimidation that interrupted her worship services. In one instance in 2002, when she was asked by a Muslim family to bless their house, she said other Muslims in the community threw rocks at the home.

Indradjaja alleged that she had fears for her safety as an ethnic Chinese because of riots targeting Chinese in 1998 and because of a history of attacks on Christian churches and worshippers in Indonesia. An immigration judge expressed sympathy for her plight but held that Indradjaja had failed to establish past persecution, and also that the attacks on churches were episodic and not systemic so she had not established a well-founded fear of future persecution.

She filed a petition to reopen in 2011, offering "new and previously unavailable evidence" of "dramatically increased levels of violence and persecution against Chinese Christians in Indonesia."

In support, she offered an affidavit from Jeffrey Wright, a professor and expert on human rights in Indonesia.

Wright stated that "ethnic Chinese persons and religious minorities" are "at an increasing risk of persecution"; the government repeatedly fails to provide protection to minorities; and it continues to deny its own involvement in the 1998 riots.

Wright also said there had been a "sharp increase in hardline Islamic threats against religious minorities in Indonesia." Indradjaja also submitted a number of articles herself documenting the worsening conditions in her country.

But the appeals board denied her motion to reopen because she had not submitted a sworn statement or affidavit, and thus "the relevance" of her claims about worsening conditions had not been shown. As an alternative, it rejected consideration of the Wright affidavit because primary source material had not been furnished and, "Thus, we are unable to independently assess his statements and conclusions."

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