Pursuant to Fed. R. App. P. 43(c)(2), Attorney General *

Michael B. Mukasey has been substituted for former Attorney General

Alberto R. Gonzáles as the respondent herein.

United States Court of Appeals

For the First Circuit

No. 07-1738

BENJAMIN FRANSISKUS TANDAYU,

Petitioner,

v.

MICHAEL B. MUKASEY, ATTORNEY GENERAL,*

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF THE

BOARD OF IMMIGRATION APPEALS

Before

 Lynch, Lipez, and Howard,

Circuit Judges.

David J. Rodkin on brief for Petitioner.

Peter D. Keisler, Assistant Attorney General, Mary Jane

Candeux, Assistant Director, and Jule Pfluger, Trial Attorney, on

brief for respondent.

March 27, 2008
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LIPEZ, Circuit Judge. We are reviewing the denial by the

Board of Immigration Appeals ("BIA") of petitioner Benjamin

Fransiskus Tandayu's second motion to reopen a removal proceeding.

The BIA concluded that the additional evidence submitted by Tandayu

in support of this motion did not establish a change of conditions

in Indonesia, his country of origin. We reject the petitioner's

assertions that the BIA abused its discretion and deny the petition

for review.

I.

Tandayu, a native and citizen of Indonesia and a

practicing Catholic, was admitted to the United States as a

nonimmigrant visitor on October 10, 1998, and proceeded to overstay

his visa. Pursuant to 8 U.S.C. § 1227(a)(1)(B), the former

Immigration and Naturalization Service ("INS") initiated removal

proceedings against Tandayu and served him with a Notice to Appear

("NTA") on April 24, 2003. At a hearing before an Immigration

Judge ("IJ") on November 5, 2003, Tandayu admitted the factual

allegations in the NTA, conceded removability and applied for

asylum, withholding of removal, protection under the Convention

Against Torture ("CAT") and, alternatively, voluntary departure.

He claimed past religious persecution as a Catholic and a wellfounded fear of persecution should he return to Indonesia.

On September 27, 2005, the IJ found that Tandayu's

application for asylum was untimely and that he failed to qualify
 To qualify for withholding of removal, an applicant must 1

demonstrate that, "upon deportation, he is more likely than not to

face persecution on account of race, religion, nationality,

membership in a particular social group, or political opinion."

Sharari v. Gonzales, 407 F.3d 467, 474 (1st Cir. 2005); see 8

U.S.C. § 1231(b)(3)(A). The standard under CAT is more stringent

because an applicant must establish that "it is more likely than

not that he or she would be tortured if removed to the proposed

country." 8 C.F.R. § 1208.16(c)(2); see Hana v. Gonzalez, 503 F.3d

39, 44 (1st Cir. 2007).

 A motion to reconsider does not raise new facts or present 2

new evidence, but merely asserts that the BIA erred as a matter of

law or fact in its initial determination. See Zhang v. INS, 348

F.3d 289, 292-93 (1st Cir. 2003). Compare 8 C.F.R. § 1003.2(c)

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for an exception to the time bar. The IJ also found that his

applications for withholding of removal and CAT relief failed to

state a claim for relief. The IJ granted Tandayu voluntary 1

departure.

On October 24, 2005, petitioner timely appealed the IJ's

decision to the BIA. The BIA also found that the petitioner had

failed to prove past persecution or that he would be more likely

than not to face persecution or torture if returned to Indonesia.

The BIA established that Tandayu had to voluntarily depart within

sixty days of the date of the order, November 30, 2006. Petitioner

did not seek judicial review of the BIA's decision.

Almost a month later, on December 26, 2006, petitioner

filed his first motion to reopen removal proceedings. Although

titled "Motion to Reconsider the Appeal," the motion was in fact a

request to consider materials which suggested that the conditions

in Indonesia had worsened, especially for Christians.2
(establishing the requirements for a motion to reopen) with 8

C.F.R. § 1003.2(b) (establishing the requirements for a motion to

reconsider). 

 The first Internet article included by petitioner, dated 3

January 24, 2007 and entitled, "Indonesia's Infamous Poso Area

Deteriorates Further, Bomb Planted at Church," is available at

http://www.persecution.org/suffering/newsdetail.php?newscode=4433.

The second article, dated February 27, 2007 and entitled,

"Indonesia not doing enough against terrorism and Jemaah Islamiyah

threat," is available at http://www.asianews.it/

index.php?l=en&art=8602&size=A.

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Specifically, Tandayu included or referenced three documents issued

by the U.S. Department of State, including (1) a November 18, 2005

travel warning for Indonesia, (2) an International Religious

Freedom Report 2005 for Indonesia, and (3) a Country Report on

Human Rights Practices for Indonesia 2005. The latter two

documents were referenced in Tandayu's affidavit. The BIA denied

petitioner's motion on February 7, 2007, noting that the

information presented was unlikely to change the result in the

case.

The following month, on March 5, 2007, petitioner filed

a second motion to reopen the removal proceedings, again styled as

a motion to reconsider. The second motion included a new affidavit

that cited the same country report he referenced in the first

motion and new evidence, in the form of two recent internet

articles, to support his claim that conditions in Indonesia had

deteriorated. The BIA denied the second motion on April 13, 2007, 3

finding that "the internet articles submitted do not establish a
The BIA improperly characterized petitioner's motion in its 4

April 13, 2007 decision as a motion to reconsider. Nevertheless,

the BIA noted that to the extent petitioner's motion was one to

reopen removal proceedings, that claim failed because Tandayu did

not establish a change of conditions in Indonesia.

Although petitioner also challenges the IJ's asylum 5

determination, we lack jurisdiction to review the IJ's conclusions

with respect to the statutory time bar. 8 U.S.C. § 1158(a)(3); see

Tum v. Gonzalez, 503 F.3d 159, 160-61 (1st Cir. 2007). Therefore,

we interpret his motion to reopen as applying only to his

withholding of removal and CAT claims.

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worsening of conditions in Indonesia, on a countrywide basis, to

the extent that the respondent now has prima facie eligibility for

asylum, withholding of removal, or protection under the Convention

Against Torture." Tandayu now appeals this BIA decision. 4 5

II.

Because motions to reopen removal proceedings "are

disfavored as contrary to 'the compelling public interests in

finality and the expeditious processing of proceedings,'" Raza v.

Gonzalez, 484 F.3d 125, 127 (1st Cir. 2007) (quoting Roberts v.

Gonzalez, 422 F.3d 33, 35 (1st Cir. 2005)), we review the BIA's

denial of such motions solely for an abuse of discretion, Lemus v.

Gonzales, 489 F.3d 399, 401 (1st Cir. 2007). The BIA's decision is

upheld "unless the complaining party can show that the BIA

committed an error of law or exercised its judgment in an

arbitrary, capricious, or irrational way." Raza 484 F.3d at 127.

Further, motions to reopen are limited both temporally

and numerically. An alien normally may file only one motion to
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reopen a removal proceeding, and must do so within ninety days of

the final administrative decision. See 8 C.F.R. § 1003.2(c)(2);

see also 8 U.S.C. § 1229a(c)(7)(A), (C)(i). These limitations are

relaxed only if a petitioner "makes a convincing demonstration of

changed conditions in his homeland." Raza, 484 F.3d at 127; see 8

C.F.R. § 1003.2(c)(3)(ii). "Th[e] changes . . . must be material

to the underlying substantive relief that the alien is seeking,"

Raza, 484 F.3d at 127, and the new evidence must "establish a prima

facie case sufficient to ground . . . claim[s] of eligibility for

the underlying substantive relief," which, in this case, are

withholding of removal and CAT relief, id. at 127-28. Because

petitioner's current motion is his second to reopen, his claim is

numerically barred. However, he argues that he has overcome this

bar with a showing of changed conditions.

In support of his assertion that the BIA abused its

discretion, Tandayu cites the aforementioned articles depicting

violence and terrorist activity in Indonesia. The first is dated

January 24, 2007 and describes two episodes of religious violence

that occurred in Poso, a region in Central Sulawesi, during the

weeks immediately proceeding the publication of the article. The

article also notes that similar bombings and attacks had occurred

in Poso for the past three years and that Indonesian police and

armed forces are working to quell the violence in that area.
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The second article he cites is dated February 27, 2007

and reports on the previous day's testimony of a United States

professor, Zachary Abuza, at an Australian conference. According

to the article, Professor Abuza stated that the Indonesian

government must do more to stop the activities of the terrorist

group Jemaah Islamiyah, which has gained public support across the

region. Other than this general reference to the growth of the

Jemaah Islamiyah, the article does not explain how conditions have

deteriorated in Indonesia. Further, it records Professor Abuza as

acknowledging that the Indonesian government has arrested many

Jemaah Islamiyah members.

Given such evidence, there was no abuse of discretion in

the BIA's rejection of the second motion to reopen. Instead of

establishing changed conditions, the evidence merely confirmed the

ongoing nature of the religious conflict in Indonesia since 2002,

not its intensification. The articles and references to the U.S.

Department of State reports echoed materials that were previously

presented before the IJ and the BIA. Tandayu had already provided

U.S. Department of State Country Reports on Human Rights noting

that the number of attacks on churches, including arson, vandalism,

shootings, and forced closures, had increased from seven in 2003 to

ten in 2004. Moreover, the petitioner offered no link between the

general state of continuing violence in Indonesia and his own

individualized risk of harm. See Melhem v. Gonzalez, 500 F.3d 78,
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82 (1st Cir. 2007) ("[G]eneral reports that some members of a

certain group are persecuted in a country do not establish that it

is more likely than not that the applicant himself will suffer

persecution upon his return.").

We deny the petition for review.