Filed: Apr. 28, 2016
Latest Update: Mar. 02, 2020
Summary: 14-4686 Nency v. Lynch BIA A099 587 585 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMA
Summary: 14-4686 Nency v. Lynch BIA A099 587 585 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMAR..
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14-4686
Nency v. Lynch
BIA
A099 587 585
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 28th day of April, two thousand sixteen.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 Chief Judge,
9 DEBRA ANN LIVINGSTON,
10 DENNY CHIN,
11 Circuit Judges.
12 _____________________________________
13
14 NENCY NENCY,
15 Petitioner,
16
17 v. 14-4686
18 NAC
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Charles Christophe, New York, NY.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
27 Assistant Attorney General; Douglas
28 E. Ginsburg, Assistant Director;
29 Benjamin Mark Moss, Trial Attorney,
30 Office of Immigration Litigation,
31 United States Department of Justice,
32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review is
4 DENIED.
5 Petitioner Nency Nency, a native and citizen of Indonesia,
6 seeks review of a November 24, 2014, decision of the BIA denying
7 her motion to reopen. In re Nency Nency, No. A099 587 585
8 (B.I.A. Nov. 24, 2014). We assume the parties’ familiarity
9 with the underlying facts and procedural history in this case.
10 We review the BIA’s denial of a motion to reopen for abuse
11 of discretion, “mindful that motions to reopen ‘are
12 disfavored.’” Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006)
13 (per curiam) (quoting INS v. Doherty,
502 U.S. 314, 323 (1992)).
14 An alien seeking to reopen proceedings may file one motion to
15 reopen no later than 90 days after the final administrative
16 decision is rendered. 8 U.S.C. § 1229a(c)(7)(A),
17 (c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). However, the time and
18 numerical limitations do not apply if the motion is “based on
19 changed country conditions arising in the country of
20 nationality . . . if such evidence is material and was not
21 available and would not have been discovered or presented at
22 the previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); 8
2
1 C.F.R. § 1003.2(c)(3)(ii).
2 Nency’s 2014 motion was untimely and number barred, and the
3 BIA was within its discretion to find no material change in
4 country conditions excusing the motion from those limitations.
5 The question on a motion to reopen is not whether conditions
6 are poor, but rather whether they have changed. 8 U.S.C. §
7 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii); Matter of
8 S-Y-G-, 24 I. & N. Dec. 247, 253 (BIA 2007) (comparing “the
9 evidence of country conditions submitted with the motion to
10 those that existed at the time of the merits hearing below”).
11 The BIA reasonably concluded that the “mistreatment of
12 Christians has, unfortunately, been a longstanding problem in
13 Indonesia,” and cited record evidence of riots and a church
14 burning in 1998 and attacks on Christians in 2002, 2003 and 2004.
15 The record supports this conclusion generally. See U.S. Dep’t
16 of State, Bureau of Democracy, H.R. and Lab., International
17 Religious Freedom Report (2005) (Indonesia) (stating that
18 “certain policies, laws, and official actions restricted
19 religious freedom, and the police and military occasionally
20 tolerated discrimination against and abuse of religious groups
21 by private actors”); U.S. Dep’t of State, Bureau of Democracy,
22 H.R. and Lab., International Religious Freedom Report (2006)
3
1 (Indonesia) (citing ongoing “political and economic tensions
2 between approximately equal populations of Christians and
3 Muslims [that] continued to cause sporadic violent episodes
4 resulting in deaths,” with the caveat that criminal motives may
5 have been at play).
6 Nency contends that in Indradjaja v. Holder, 737 F.3d 212
7 (2d Cir. 2013), we “found” that “violence against Christians
8 was on the rise in Indonesia,”
id. at 216, and argues that her
9 evidence is more compelling than what was submitted there.
10 Neither point is accurate. The BIA denied Indradjaja’s motion
11 to reopen for failure to submit her own affidavit, and
12 alternatively discounted her expert’s affidavit because it did
13 not include the sources on which it was based. We granted the
14 petition for review because neither of those procedural rulings
15 had any basis in law or regulation.
Indradjaja, 737 F.3d at
16 218-20. We did not (and indeed, could not) make factual
17 findings about current conditions in Indonesia. 8 U.S.C.
18 § 1252(b)(4)(A). We observed that Indradjaja’s decision to
19 submit an expert’s affidavit instead of her own was “logical
20 since Indradjaja, who had not been to Indonesia during the
21 period in question, would have had no personal knowledge of
22 changes that had occurred in her absence.” Indradjaja, 737
4
1 F.3d at 219. But Nency did the reverse: she submitted a handful
2 of newspaper articles about recent attacks on Christians, and
3 otherwise relied on her own affidavit, in which she described
4 media reports of violence. Given that Nency is not an expert
5 on human rights in Indonesia, the BIA was within its discretion
6 to find that her affidavit did not warrant reopening.
7 For the foregoing reasons, the petition for review is
8 DENIED. As we have completed our review, any stay of removal
9 that the Court previously granted in this petition is VACATED,
10 and any pending motion for a stay of removal in this petition
11 is DISMISSED as moot. Any pending request for oral argument
12 in this petition is DENIED in accordance with Federal Rule of
13 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
14 34.1(b).
15 FOR THE COURT:
16 Catherine O=Hagan Wolfe, Clerk
5
