          United States Court of Appeals
                      For the First Circuit


No. 17-2183

                         INDRA SIHOTANG,

                           Petitioner,

                                v.

                   JEFFERSON B. SESSIONS, III,
                        ATTORNEY GENERAL,

                           Respondent.



              PETITION FOR REVIEW OF AN ORDER OF THE
                   BOARD OF IMMIGRATION APPEALS



                              Before

                  Thompson, Selya, and Kayatta,
                         Circuit Judges.


     Jesse 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.


                         August 15, 2018
             SELYA, Circuit Judge.             Motions 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.

             The     petitioner,      Indra     Sihotang,     is   an    Indonesian

national     and     an    evangelical     Christian.         In   his    homeland,

approximately eighty-seven percent of the population is Muslim.

             The 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).

             During       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


                                        - 2 -
described three sets of incidents, which he attributed to his

religious identity:

                   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.

Despite   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.

          Notwithstanding            the      expiration        of        the     voluntary

departure period, federal authorities allowed the petitioner to

remain in the United States under an order of supervision for




                                         - 3 -
almost ten years.1        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.

             The 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 occasions).

This time, he was taken into custody by ICE officers.

             On October 12, 2017 — while still in custody — the

petitioner moved to reopen his removal proceedings.                   See 8 C.F.R.

§ 1003.2(c).    Because the petitioner's motion was not filed within

90 days of the final administrative decision in the initial removal

proceeding, the BIA deemed the motion time-barred.                         See id.

§ 1003.2(c)(2).         Seeking to avoid this temporal barrier, the

petitioner    averred     that   country      conditions       in    Indonesia   had




     1 This order of supervision arose out of Operation Indonesian
Surrender, a humanitarian program initiated by Immigration and
Customs Enforcement (ICE).       Under the program, Indonesian
nationals subject to final orders of removal could make themselves
known to ICE and, in ICE's discretion, receive temporary stays of
removal, accompanied by renewable orders of supervision.       See
Devitri v. Cronen, 289 F. Supp. 3d 287, 290 (D. Mass. 2018).


                                      - 4 -
changed materially since the time of his merits hearing.              See id.

§ 1003.2(c)(3)(ii).     In support, he submitted new evidence in the

form of published news articles and country conditions reports.

He also submitted a detailed 66-page affidavit signed by Dr.

Jeffrey A. Winters, an academician specializing in Indonesian

political economy, labor, and human rights.

            The BIA gave the petitioner short shrift.              In a terse

one-and-a-half page opinion, the BIA framed the petitioner's claim

as   one   of   "changed    country     conditions    affecting    Indonesian

Christians, particularly in the increasing influence of extreme

Islamic groups."     It proceeded to deny the petitioner's motion to

reopen,    concluding      that   conditions     in    Indonesia    had     not

"materially changed since [the 2006 merits] hearing." In the BIA's

estimation, the petitioner had managed to show only "a continuation

of previously existing conditions."            Although the BIA concluded

that   "Christians    in    Indonesia    may   face   societal     abuses   or

discrimination, and . . . there have been incidents of harm against

Christians and their places of worship," it nonetheless noted that,

"millions of Christians continue to live in Indonesia without

experiencing harm."        This timely petition for judicial review

ensued. We issued a temporary stay of removal on December 1, 2017,

and supplanted that temporary stay with a more durable stay order

on February 14, 2018.




                                      - 5 -
               Our standard of review is familiar.                Motions to reopen

removal proceedings are disfavored because they impinge upon "the

compelling      public    interests    in    finality       and    the    expeditious

processing of proceedings."           Bbale v. Lynch, 840 F.3d 63, 66 (1st

Cir. 2016) (quoting Roberts v. Gonzales, 422 F.3d 33, 35 (1st Cir.

2005)).    We afford the BIA "wide latitude in deciding whether to

grant or deny such a motion," id., and judicial review is for abuse

of discretion, see Sánchez-Romero v. Sessions, 865 F.3d 43, 46

(1st Cir. 2017).          To cross this threshold, the petitioner must

show that the BIA either "committed an error of law or exercised

its judgment in an arbitrary, capricious, or irrational manner."

Bbale, 840 F.3d at 66.

               Whether an abuse of discretion occurs necessarily hinges

on the facts and circumstances of each particular case.                         To guide

this   inquiry,      we   have   explained     that   the    BIA    may    abuse      its

discretion "by neglecting to consider a significant factor that

appropriately bears on the discretionary decision, by attaching

weight    to    a   factor   that   does    not   appropriately          bear    on   the

decision, or by assaying all the proper factors and no improper

ones, but nonetheless making a clear judgmental error in weighing

them."    Murillo-Robles v. Lynch, 839 F.3d 88, 91 (1st Cir. 2016)

(quoting Henry v. INS, 74 F.3d 1, 4 (1st Cir. 1996)).

               With the standard of review in place, we return to the

case at hand.       To succeed on his motion to reopen, the petitioner


                                       - 6 -
had to satisfy two substantive requirements.         First, he had to

"introduce new, material evidence that was not available at the

original merits hearing."    Perez v. Holder, 740 F.3d 57, 62 (1st

Cir. 2014).     Second, he had to "make out 'a prima facie case of

eligibility for the relief sought.'" Id. (quoting Jutus v. Holder,

723 F.3d 105, 110 (1st Cir. 2013)).

             In determining whether the petitioner satisfied the

first requirement, the BIA had to "compare[] the evidence of

country conditions submitted with the motion to those that existed

at the time of the merits hearing."     Sánchez-Romero, 865 F.3d at

46 (quoting Xin Qiang Liu v. Lynch, 802 F.3d 69, 76 (1st Cir.

2015)).      To prevail, the petitioner had to demonstrate that

conditions in Indonesia had "intensified or deteriorated" in some

material way between November 8, 2006 (the date of the petitioner's

merits hearing) and October 12, 2017 (the date on which the

petitioner filed his motion to reopen).        Id.   The BIA concluded

that the petitioner failed to satisfy this requirement:         he had

shown nothing more than the persistence of negative conditions for

Indonesian    Christians.    That   showing,   the   BIA   opined,   was

insufficient to carry the petitioner's burden of proving that his

new evidence reflected a material change in country conditions.2




     2 The BIA did not analyze the second requirement. Had it done
so, it would have had to determine whether the petitioner had made
a prima facie showing of the substantive elements of the relief


                                - 7 -
See, e.g., Sugiarto v. Holder, 761 F.3d 102, 103-04 (1st Cir.

2014); Simarmata v. Holder, 752 F.3d 79, 81 (1st Cir. 2014);

Marsadu v. Holder, 748 F.3d 55, 59 (1st Cir. 2014); Fen Tjong Lie

v. Holder, 729 F.3d 28, 30-31 (1st Cir. 2013).

           We find the BIA's analysis superficial.          For aught that

appears, the BIA seems to have evaluated the petitioner's motion

to reopen as if he were a prototypical Indonesian Christian.           The

record, however, belies this assumption.        In his motion to reopen,

the petitioner asserted — and the government did not dispute —

that the petitioner subscribes to a more particularized subset of

the Christian faith:      he is an evangelical Christian, for whom

public proselytizing is a religious obligation.           Yet, in terms of

the   prospect   of   persecution    arising   out   of   changed   country

conditions, the BIA wholly failed to evaluate whether and to what

extent there is a meaningful distinction between Christians who

practice their faith in private and evangelical Christians (such

as the petitioner), for whom public proselytizing is a central

tenet.    So, too, the BIA neglected to consider whether country

conditions had materially changed with respect to public and

private    reactions     (including     vigilante     violence)      toward

evangelical Christians.      Finally, the BIA neglected to consider




ultimately sought (here, asylum or withholding of removal).            See
Panoto v. Holder, 770 F.3d 43, 46 (1st Cir. 2014).


                                    - 8 -
whether attitudes in Indonesia had materially changed with respect

to persons making public religious statements.

            While it remains true that the BIA need not "dissect in

minute detail every contention that a complaining party advances,"

Xiao He Chen v. Lynch, 825 F.3d 83, 88 (1st Cir. 2016) (quoting

Raza v. Gonzales, 484 F.3d 125, 128 (1st Cir. 2007)), it cannot

turn a blind eye to salient facts.          The BIA must fairly appraise

the record and, in this case, it appears to have completely

overlooked critical evidence. Indeed, the BIA never even mentioned

terms remotely resembling "evangelical" or "proselytize" in its

opinion.    So stark a failure to consider significant facts that

appropriately bear on the discretionary decision about whether to

grant a motion to reopen is perforce an abuse of discretion.            See

Murillo-Robles, 839 F.3d at 91; Henry, 74 F.3d at 4.

            Nor can we say either that these overlooked facts were

insignificant or that the BIA's error in disregarding them was

harmless.     The   record   is   replete   with   copious   new   evidence

submitted by the petitioner and unavailable in 2006, which might

well serve to ground a finding (or at least a reasonable inference)

that country conditions have steadily deteriorated over the past

twelve years.   In particular, Islamic fundamentalist fervor seems

to have intensified, such that evangelical Christians may now be

at special risk in Indonesia.         We offer some examples of this

evidence:


                                   - 9 -
   Media    reports     suggest      that    Indonesia        has    been

    moving inexorably away from secular values and

    toward sharia law.           For instance, the national

    government codified and enacted sharia principles

    into criminal, economic, and moral legislation in

    2008.

   That    same     year,   Muslim    extremists       stormed        the

    Arastamar Evangelical School of Theology in the

    middle of the night, wielding spears and hurling

    Molotov        cocktails.         Eighteen     students           were

    seriously injured.

   In     2010,    Muslim     extremists       tried     to    prevent

    thousands of Christians from gathering for Easter

    mass; the local government responded by supporting

    the extremists and instructing the worshippers to

    forgo the service.

   Five months later, a pair of marauders beat and

    stabbed two Christian clergymen in broad daylight.

    The     assailants       were     found      guilty        only     of

    "unpleasant conduct" and sentenced to a few months

    in jail.

   In early 2011, more than 1,500 Muslim extremists

    violently       demanded    the     death    sentence        for     a




                       - 10 -
    Christian     found     guilty      of     blasphemy.      When    he

    received the statutory maximum prison sentence but

    was     allowed    to      live,        extremists    stormed     the

    courthouse and burned three churches to the ground.

   In 2013, the national government introduced a bill

    to broaden the definition of criminal blasphemy

    (which was already "implemented almost exclusively

    in defense of Islam") and increase the maximum

    sentence thereunder.

   In    2016,   several       hundred        thousand     Indonesians

    protested     vociferously          after       the   governor    of

    Jakarta       (a     Christian)            publicly      encouraged

    Indonesians to consider voting for non-Muslims.

    The   authorities       lost       no    time   in    charging    the

    governor with violating a blasphemy law that rarely

    had been invoked during the previous three decades.

    The governor was convicted and sentenced to a two-

    year prison term.

   Also in 2016, government officials publicly caned

    a Christian.       This broke new ground:             it was one of

    the first impositions of sharia punishment on a

    non-Muslim.

   Later     that     year,     Indonesia's         highest    Islamic

    council modified a fatwa (religious ban) so that it


                        - 11 -
                prohibited Muslims from saying "Merry Christmas" or

                wearing     "non-Muslim         religious          attributes"

                (including Santa hats and reindeer horns) in stores

                and   restaurants.3        Hardline   vigilante      groups   —

                sometimes   accompanied       by    Indonesian      police    —

                "swept" through areas where suspected violations of

                this fatwa were reported.

               Dr. Winters' affidavit indicates that since 2008,

                "violence and intolerance directed at religious

                minorities has increased at a shocking rate," while

                the "government [has remained] unwilling or unable

                to take firm and decisive action to punish militant

                Muslims."     Among     other      supporting      items,    Dr.

                Winters   cites    a   2017   study      finding    that    "the

                frequency   of    [vigilante]      mob    attacks    actually

                registered a 25 percent increase between 2007 and

                2014."

               With respect to evangelical Christians, Dr. Winters

                stated that they "face heightened risks because a

                core part of their faith and practice is to go out

                into their communities and 'spread the Gospel,'


     3 Prior to 2016, this fatwa — originally issued in 1981 —
explicitly allowed Muslims to say "Merry Christmas" and only
proscribed Muslim participation in formal Christian rituals (such
as prayer and mass).


                                  - 12 -
                   which     in    Indonesia       is    deemed    to   be   hostile

                   proselytizing that leads to [illegal] religious

                   conversion."

                  Dr. Winters also pointed out that "[t]he Islamic

                   movement to impose exclusionary shari[a] law has

                   grown stronger and more radical" since 2008.                 This

                   fact, along with the totality of the other relevant

                   circumstances, led him to conclude that "[t]he

                   danger     to    [the    petitioner]       as   an   evangelical

                   Christian is vastly higher now than it was at the

                   end of 2008."

             There    is    more.          The     petitioner      buttressed    the

evidentiary submissions accompanying his motion to reopen with

country conditions reports.           We previously have noted that State

Department country conditions reports, though not conclusive, are

"generally    deemed       authoritative         for    purposes   of   immigration

proceedings."        Pulisir v. Mukasey, 524 F.3d 302, 310 (1st Cir.

2008).   In this case, the country conditions reports made pellucid

that religious intolerance was a burgeoning problem.                    To compound

the problem, the Indonesian government — both at the national and

local levels — has, according to the reports, increasingly "failed

to prevent violence, abuse, and discrimination against individuals

based on their religious belief[s]."




                                      - 13 -
            We add, moreover, that the reports identified another

area of growing concern:    the authorities "discriminated against

followers of religious groups that constituted a local minority"

through arbitrary arrests and charges for blasphemy and insulting

religion.    And even though proselytizing and other attempts at

religious conversion were criminalized in Indonesia prior to 2006,

the reports noted a dramatic increase from that time forward in

persecution (both by the government and by private parties) of

Indonesians who publicly display their Christianity.

            To be sure, the government tries to pigeonhole the

petitioner's case as merely another link in a chain of four cases

in which we have rejected claims by Indonesian Christians that

country conditions have materially changed.      See Sugiarto, 761

F.3d at 104; Simarmata, 752 F.3d at 82; Marsadu, 748 F.3d at 61;

Fen Tjong Lie, 729 F.3d at 31.      This case, though, is readily

distinguishable.   None of the earlier cases involved an alien who

held himself out to be an evangelical Christian.   Accordingly, the

religious beliefs of those aliens — and therefore their experiences

with religious intolerance — were different in kind, not just in

degree.

            What is more, the factual inquiry in this case covers a

span (approximately eleven years) that is considerably longer than

the span considered in any of our earlier cases.    We think it is

plain that the longer the time span, the more inclusive the factual


                               - 14 -
inquiry into whether country conditions have changed.             Here, this

more inclusive factual inquiry reflects a steep rise in intolerance

from start to finish.

             To cinch matters, this case is of more recent vintage

than any of the cases relied on by the government.              This fact is

critically important because the record details an especially

sharp   increase    in    governmental      and   private    persecution   of

Indonesian Christians between 2014 and 2017 — a period not under

review in any of those prior cases.

             The short of it is that the record reflects a ramping-

up of religious intolerance, increasing over time, in ways that a

reasonable     observer    might    find      uniquely      problematic    for

evangelical Christians.      This evidence of steadily deteriorating

country conditions raises a troubling question as to whether a

tipping point — a point at which the changes can be said to be

materially adverse to evangelical Christians — has been reached.

The BIA should have confronted this question face up and squarely

and provided a reasoned answer to it.             Specifically, it should

have considered whether, in view of the public nature of the

petitioner's evangelical faith, country conditions in Indonesia

had materially changed.      Its failure to do so constituted an abuse

of discretion and undermined its denial of the motion to reopen.

             We need go no further.        At this juncture, it would be

premature for us to attempt to make a definitive determination


                                   - 15 -
either as to whether the petitioner has established materially

changed country conditions vis-à-vis evangelical Christians or as

to whether he has made a prima facie showing of eligibility for

the relief ultimately sought.   See Bbale, 840 F.3d at 66.     It

suffices for us to hold — as we do — that the BIA abused its

discretion in neglecting to consider significant facts that may

have had a bearing on the validity of the petitioner's motion to

reopen.

          For the reasons elucidated above, we grant the petition

for judicial review, vacate the order of the BIA, and remand so

that the BIA may determine, upon due consideration of all the

relevant evidence, whether the petitioner has shown a material

change in country conditions and, if so, whether he has made a

prima facie showing of eligibility for the relief ultimately

sought. The stay of removal entered by this court on February 14,

2018, will remain in effect pending further order of this court.

We retain jurisdiction to the extent necessary to extend, modify,

dissolve, or ensure compliance with that stay order.



So ordered.




                             - 16 -
