Indonesian Christians Win Stay from Deportation to Avoid Religious Persecution

Following a federal judge’s order, a group of Indonesian Christians will be allowed to stay in the U.S. to avoid likely persecution in their home country while immigration officials decide whether they should be deported.

Chief U.S. District Judge Patti B. Saris issued an order on Thursday granting the Indonesian Christians petition for a temporary injunction that bars U.S. Immigration and Customs Enforcement from deporting them, giving each petitioner a chance to reopen their case before the Board of Immigration Appeals.

Judge Saris found persuasive evidence that the petitioners would face persecution if they were forced to return to Indonesia. She concluded that the BIA’s procedures would not give these petitioners an adequate administrative alternative to habeas corpus relief, and that deporting them before the BIA could issue decisions on their motions to reopen and stay would violate their due process rights under the Fifth Amendment.

These Indonesian Christians have been living in New Hampshire for several years, some for more than a decade. Under a 2010 program known as “Operation Indonesian Surrender,” the petitioners and many others were offered temporary stays of removal in exchange for identifying themselves to ICE.

As part of Operation Indonesian Surrender, petitioners were placed under Orders of Supervision that governed the terms of their stay. The orders allowed petitioners to seek employment in the U.S. but also required them to periodically check in with ICE officials. The petitioners generally complied with these orders and lived under them without incident into 2017, according to Judge Saris.

The program has since been cancelled. On Aug. 1, 2017, a group of petitioners were given orders to return to Indonesia in 60 days.

The petitioners now seek to reopen their immigration proceedings before the BIA, based on “changed country conditions” that would leave them subjected to persecution and torture if they returned to Indonesia. They asked Judge Saris to prevent ICE from forcing their deportation while they go through the BIA process.

The petitioners presented testimony from expert witness Dr. Jeffrey Winters, who testified that as Indonesian Christians, the petitioners would face an “extremely high probability of persecution” if they were forced to return to their home country.

According to Dr. Winters, Indonesia is experiencing a growth in Islamic extremism that has led to an increase in violence against religious minorities. The petitioners have been well-publicized in Indonesia for speaking out against anti-Christian persecution, he said. If they were to return there, he said, they “will certainly never be permitted to leave Indonesia for the U.S. again.”

Judge Saris determined that for these petitioners, the BIA’s process is not adequate to protect their Constitutional rights. Under that process, the petitioners would likely be deported before the BIA could issue a ruling on their motion to stay deportation, the judge said.

“Thus, under this Kafkaesque procedure, they will be removed back to the very country where they fear persecution and torture while awaiting a decision on whether they should be subject to removal because of their fears of persecution and torture,” the judge noted.

Under terms of the order, ICE is stayed from deporting the petitioners for at least 90 days while the petitioners are given a chance to file motions to reopen with the BIA. The stay will remain in effect until seven business days after the BIA rules on the petitioners’ motions to reopen, giving the petitioners a chance to appeal to the First Circuit.

The plaintiffs are represented by attorneys from Nixon Peabody LLP and the American Civil Liberties Union.

The Indonesian Christians Immigration Class Action Lawsuit is Devitri, et al. v. Cronen, et al., Case No. 1:17-cv-11842, in the U.S. District Court for the District of Massachusetts.