Ang v. Lynch

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 14-1719
SUNARTO ANG and TUTI ERLINA,
Petitioners,
v.
LORETTA E. LYNCH,
Attorney General of the United States,*
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Thompson, and Barron,
Circuit Judges.
Jack Herzig on brief for petitioner.
Robert Michael Stalzer, Trial Attorney, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice, Joyce R.
Branda, Acting Assistant Attorney General, Civil Division, U.S.
Department of Justice, and Stephen J. Flynn, Assistant Director,
Office of Immigration Litigation, Civil Division, U.S. Department
of Justice, on brief for respondent.
August 19, 2015
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Attorney General Loretta E. Lynch has been substituted for former
Attorney General Eric H. Holder, Jr., as the respondent.
BARRON, Circuit Judge. Petitioners Sunarto Ang and Tuti
Erlina, a married couple, are Indonesian citizens who seek to
reopen their unsuccessful application for asylum. Because we
conclude that the Board of Immigration Appeals did not err in
refusing to do so, we deny their petition for review of the Board's
decision.
I.
The petitioners entered the United States on temporary
visas in March of 2007, stayed past those visas' dates of
expiration, and applied for asylum in December of 2007. The
petitioners, who are Christian, claimed they would face
"persecution . . . on account of . . . religion" if they were
removed to Indonesia. 8 U.S.C. § 1101(a)(42)(A). An Immigration
Judge denied the petitioners' asylum application in August of 2010.
The Board of Immigration Appeals then affirmed, and this Court
denied the petitioners' petition for review on the merits in mid-
2013. Ang v. Holder, 723 F.3d 6 (1st Cir. 2013).
Nearly eight months later, the petitioners filed a
motion to reopen their asylum application with the Board of
Immigration Appeals. See 8 C.F.R. § 1003.2(c)(1). Such motions
are generally disfavored because they disrupt "compelling public
interests in finality and the expeditious processing of
proceedings." Guerrero-Santana v. Gonzales, 499 F.3d 90, 92 (1st
Cir. 2007) (quoting Raza v. Gonzales, 484 F.3d 125, 127 (1st Cir.
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2007)). Thus, such motions must provide evidence material to the
asylum claim that was not available at the time of the asylum
hearing. 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(1).
The petitioners' motion is especially disfavored,
however, because they filed it late. See 8 U.S.C.
§ 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2) (motions to reopen
must generally be filed within 90 days of the final administrative
decision in the initial proceeding). As a result, the petitioners
must clear an additional hurdle. They must show that their motion
is based on "changed country conditions arising in [their] country
of nationality or the country to which removal has been ordered."
8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii).
II.
The Board may properly deny a late motion to reopen if
the petitioner's evidence of purportedly "changed conditions"
shows only a "mere continuation" of prior conditions, Marsadu v.
Holder, 748 F.3d 55, 58 (1st Cir. 2014), or what we have elsewhere
described as a "persistence of negative conditions," Fen Tjong Lie
v. Holder, 729 F.3d 28, 31 (1st Cir. 2013). Thus, a petitioner,
to succeed in an untimely motion to reopen based on changed
conditions, must show an "intensification or deterioration" of
conditions in the relevant country. Marsadu, 748 F.3d at 58; see
also Fen Tjong Lie, 729 F.3d at 30-31. We review the Board's
finding that the petitioners made no such showing here for abuse
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of discretion, and so we may reverse only if the Board's decision
was "arbitrary, capricious, or irrational." Raza, 484 F.3d at
127.
In this case, the Board's conclusion that the
petitioners failed to make the required showing was reasonable.
The petitioners did offer evidence that attacks on Christians and
churches in Indonesia have continued in the years following their
2010 asylum hearing. And the petitioners also offered evidence
that local governments in Indonesia have, since 2010, refused to
issue permits that churches need to legally operate and then shut
down those churches for lacking such permits. But the discussion
of Indonesia in the United States Department of State's 2009 Report
on International Religious Freedom -- which is part of the record
from the petitioners' original, 2010 hearing -- reveals that
similar conditions were present in Indonesia at the time of the
2010 hearing. The Board thus supportably concluded that
petitioners' newly offered evidence showed conditions that are
"substantially similar" to those that prevailed in Indonesia at
the time of the petitioners' original asylum hearing. See Sugiarto
v. Holder, 761 F.3d 102, 104 (1st Cir. 2014) (upholding the Board's
finding of no changed conditions where the petitioner's evidence
showed new attacks on Christians that were substantially similar
to attacks that had occurred before the petitioner's original
asylum hearing).
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The Board did recognize that the petitioners also
supplied two news articles "describ[ing], in passing, an
'increasing theater of violence and abuse against religious
minorities' and a 'rise in the number of attacks or intolerance
against minorities, including Christians.'" (Alterations
omitted.) But the articles provide no details about how conditions
for Christians in Indonesia have worsened. We thus agree with the
Board that these articles are "generalized and conclusory in
nature." For that reason, the articles do not show that the Board
abused its discretion in finding that the petitioners failed to
make the necessary showing of changed country conditions. See
Haizem Liu v. Holder, 727 F.3d 53, 56 n.5 (1st Cir. 2013) (holding
that a letter's "lack of detail and conclusory assertions"
"provide[d] insight into its likely veracity and reliability" as
support for a claim of changed country conditions). And although
the Board did not mention specifically several other news articles
that the petitioners submitted that contain similar statements,
those statements likewise lacked details of worsening conditions.
We thus defer to the Board's finding that the petitioners have not
shown a material change in country conditions. See Sugiarto, 761
F.3d at 103-04; Haizem Liu, 727 F.3d at 56-57 & n.5.
We therefore deny the petition for review.
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