Dudi A. Yahya, Petitioner,
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.
Bauer, Ripple, and Sykes, Circuit Judges.
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.
Yahya entered the United States on a six-month tourist visa
in either 2000 or 2001 and overstayed. 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
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. To support this assertion, he submitted
twenty news articles that, in his view, documented this
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."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.
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
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.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.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.
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