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Yahya v. Sessions

United States Court of Appeals, Seventh Circuit

May 3, 2018

Dudi A. Yahya, Petitioner,
v.
Jefferson B. Sessions III, Attorney General of the United States, Respondent.

          Submitted December 12, 2017

          Petition for Review of an Order of the Board of Immigration Appeals No. A076-773-842.

          Before Bauer, Ripple, and Sykes, Circuit Judges.

          Per Curiam.

          Dudi Yahya petitions for review of the denial of his motion to reopen removal proceedings that concluded more than fourteen years ago. The Board of Immigration Appeals ("Board") upheld the Immigration Judge's ("IJ") decision to deny his motion to reopen. The Board held that Mr. Yahya did not qualify for one of the exceptions to the ninety-day limitation for the filing of a motion to reopen. Mr. Yahya now submits that the Board abused its discretion by rejecting his evidence of changed conditions in Indonesia. Because the Board permissibly concluded that Mr. Yahya did not meet his evidentiary burden, we deny the petition.

         I

         BACKGROUND

         Mr. Yahya entered the United States on a six-month tourist visa in either 2000 or 2001 and overstayed.[1] According to Mr. Yahya, in March 2003, he voluntarily appeared to register in the Government's National Security Entry-Exit Registration System and then was placed in removal proceedings. One month later, he received a notice to appear, charging him as removable because he had overstayed his visa in violation of 8 U.S.C. § 1227(a)(1)(B). Five months later, he appeared before an IJ and accepted an order of voluntary departure, but he did not depart. According to Mr. Yahya, he remained in the United States because he did not want to put his eight-month-old, American-born son on a twenty-hour flight to Indonesia. "Before I knew it, " he stated, "the days turned into months, and the months turned into years and … I have not departed."[2]

         More than twelve years after his voluntary departure order, in 2016, Mr. Yahya moved to reopen his removal proceedings. Because the ninety-day deadline for filing motions to reopen had passed, he sought to satisfy one of the exceptions to the time limit by raising a claim for asylum "based on changed country conditions arising in the country of nationality." 8 U.S.C. § 1229a(c)(7)(C)(i), (ii). Mr. Yahya said that he feared that his "moderate" Islamic faith would make him a target for "radical fundamentalist Islamic groups" in Indonesia.[3] To support this assertion, he submitted twenty news articles that, in his view, documented this threat.

         The IJ denied the motion. He concluded that Mr. Yahya did not provide sufficient evidence of changed conditions. He further stated that, in any event, he would "deny reopening as a matter of discretion given the totality of the record."[4]He noted that the equities in Mr. Yahya's favor had to be balanced against the fact that they were acquired after he had agreed to depart the United States voluntarily and then had failed to do so.

         Mr. Yahya appealed to the Board. He submitted that the IJ erred by rejecting his "abundant evidence showing that the presence of ISIS in Indonesia has resulted in changed country conditions for moderate, westernized Muslims like him and his family."[5]

         The Board upheld the IJ's decision on the basis of the IJ's reasoning. It concluded that Mr. Yahya "ha[d] not carried his burden of establishing a material change in country condi- tions for moderate, or westernized, Muslims in Indonesia" between his last hearing in 2003 and his 2016 motion to reopen.[6]Taking administrative notice of the State Department's 2003 Country Report on Indonesia, the Board pointed out that "extremist Islamic groups existed in Indonesia at that time, " and some of them had attacked and bombed civilians, but Mr. Yahya had expressed no fear of returning at that time.[7]The Board also underscored that at least two of Mr. Yahya's own submissions demonstrated that extremist violence was present earlier and is not tolerated by the Indonesian government.

         II DISCUSSION

         Mr. Yahya now contends that the Board abused its discretion in denying his late motion to reopen. Specifically, he claims that his submissions demonstrated rising levels of violence since his 2003 voluntary departure order and that the Board erred in concluding that the increase did not amount to changed country conditions. He highlights various excerpts from his submissions that, he asserts, show increased levels of violence against moderate Muslims by ISIS and the Islamic Defenders Front, an Indonesian terrorist group seeking to establish Sharia law in Indonesia. He contends that the Board overlooked these worsening conditions of violence directed at ...


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