102 F.4th 551
1st Cir.2024Background
- Petitioners (the Tulung family) are Indonesian Christians who entered the U.S. in 2004 fearing religious persecution and sought asylum, withholding of removal, and CAT protection.
- Their original applications were denied by an Immigration Judge in 2009, affirmed by the BIA in 2011, and review subsequently denied by the First Circuit in 2012.
- Multiple motions to reopen based on changed country conditions in Indonesia were denied by the BIA: first in 2014 (for speculative evidence), then a second time in 2022 (for lack of updated applications and insufficiently changed conditions).
- In July 2022, the Tulungs filed a third motion to reopen (with new evidence and updated applications), a motion to reconsider the denial of their second motion, and a motion to amend the second motion—these form the basis of this appeal.
- The BIA denied all three motions. The Tulungs appealed the denials, claiming errors in how the BIA handled and evaluated their evidence for changed conditions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the BIA properly denied the third motion to reopen | The BIA used the wrong comparator for evidence of changed conditions; must compare to initial merits hearing. | The evidence was cumulative, described conditions before prior motion, and was previously available. | BIA erred by comparing new evidence to prior motions; must compare to merits hearing; remand required. |
| Whether BIA properly denied the motion to reconsider | Recent BIA rulings and evidence on country conditions show prior denial was erroneous. | Cited decisions not precedential; Tulungs failed to show factual or legal error. | Properly denied; no legal or factual error shown, and unpublished BIA decisions not controlling. |
| Whether BIA properly denied the motion to amend | Sought to amend prior motion by adding new evidence. | Motion to amend is improper procedural tool for this reexamination. | Properly denied; a motion to amend is not valid for this purpose (at best construed as reconsider motion). |
| Proper evidentiary comparator for changed conditions | Comparator should be original merits hearing, not prior motion to reopen. | Comparator was evidence available at prior motion to reopen. | Comparator must be merits hearing; BIA legally erred in using prior motion as comparator. |
Key Cases Cited
- Cabas v. Barr, 928 F.3d 177 (1st Cir. 2019) (clarifies standard for motions to reopen based on changed country conditions)
- Garcia-Aguilar v. Whitaker, 913 F.3d 215 (1st Cir. 2019) (discusses changed country conditions analysis)
- Sihotang v. Sessions, 900 F.3d 46 (1st Cir. 2018) (articulates the requirement that changes be more than continuation of existing conditions)
- Nantume v. Barr, 931 F.3d 35 (1st Cir. 2019) (reiterates evidentiary comparator is merits hearing)
- Molina v. Barr, 952 F.3d 25 (1st Cir. 2020) (BIA must compare changed-conditions evidence to conditions at merits hearing)
- Perera v. Holder, 750 F.3d 25 (1st Cir. 2014) (standard for review of BIA discretion in reopening motions)