Edwin Samiadji v. Robert Wilkinson

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 19, 2021
• Docket: 15-71014
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 19 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

EDWIN DJOHAN SAMIADJI; MEIVY No. 15-71014 VIKE POLUAN, Agency Nos. A088-320-632 Petitioners, A088-320-633

v. MEMORANDUM* ROBERT M. WILKINSON, Acting Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted February 16, 2021**

Before: GRABER, FRIEDLAND, and BENNETT, Circuit Judges.

Edwin Djohan Samiadji and Meivy Vike Poluan, natives and citizens of

Indonesia, petition for review of the Board of Immigration Appeals’ (“BIA”) order

denying their motion to reopen removal proceedings. We have jurisdiction under

8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). reopen. Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). We deny in part

and grant in part the petition for review, and we remand.

Petitioners do not raise, and have therefore waived, any challenge to the

BIA’s denial of their request to reopen pursuant to its sua sponte authority, or to

the BIA’s determination that they failed to establish prima facie eligibility for

relief under the Convention Against Torture. See Tampubolon v. Holder, 610 F.3d

1056, 1058 n.3 (9th Cir. 2010) (issues not raised or argued in a party’s opening

brief are waived).

The BIA abused its discretion in denying petitioners’ motion to reopen as

untimely because the BIA failed to provide a reasoned explanation for its

determination that petitioners’ evidence did not establish materially changed

conditions in Indonesia. See Tadevosyan v. Holder, 743 F.3d 1250, 1252-53 (9th

Cir. 2014) (the BIA abuses its discretion when it fails to provide a reasoned

explanation for its actions). In rejecting petitioners’ claim of materially changed

country conditions, the BIA did not refer to any of the thirty-two exhibits

submitted in support of the motion, explain why the exhibits did not sufficiently

reflect materially changed conditions in Indonesia since 2009 that affected

petitioners’ eligibility for relief, or otherwise indicate that it meaningfully

considered the evidentiary record. We remand so that the BIA may more

thoroughly examine the evidence and explain the rationale behind its decision. See

2 15-71014 Avagyan v. Holder, 646 F.3d 672, 681 (9th Cir. 2011) (“The BIA abuses its

discretion when it denies petitioner’s claim with no indication that it considered all

of the evidence and claims presented by the petition.”); Hu v. Holder, 652 F.3d

1011, 1020 (9th Cir. 2011) (remanding where a meaningful review of the agency’s

decision could not be conducted because the agency failed to provide a reasoned

explanation of its decision).

The BIA also abused its discretion in denying the motion to reopen on the

ground that petitioners were not prima facie eligible for asylum or withholding of

removal, because the BIA failed to address petitioners’ contention regarding their

membership in a disfavored group. See Salim v. Lynch, 831 F.3d 1133, 1140 (9th

Cir. 2016) (“[T]he BIA committed legal error when it failed to analyze Salim’s

individualized threat of persecution in light of his membership in a disfavored

group, and instead summarily concluded that Salim’s evidence addressed only

‘general conditions in Indonesia.’”); Sagaydak v. Gonzales, 405 F.3d 1035, 1040

(9th Cir. 2005) (remanding where the BIA failed to address petitioner’s argument).

We remand to the BIA for further proceedings consistent with this disposition. See

INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam).

The government shall bear the costs for this petition for review.

Petitioners’ removal is stayed pending a decision by the BIA.

PETITION FOR REVIEW DENIED in part; GRANTED in part;

3 15-71014 REMANDED.

4 15-71014