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. At a stated term of the United States Court of Appeals for**  1 **the Second Circuit, held at the Thurgood Marshall United States** 2 **Courthouse, 40 Foley Square, in the City of New York, on the** 3 **28 th**  **day of April, two thousand sixteen.** 4 5 **PRESENT:** 6 **ROBERT A. KATZMANN,** 7 Chief Judge, 8 **DEBRA ANN LIVINGSTON,** 9 **DENNY CHIN,** 10 Circuit Judges. 11

**_____________________________________** 12 13 **NENCY NENCY,** 14 Petitioner **,** 15 16 **v. 14-4686** 17 **NAC** 18 **LORETTA E. LYNCH, UNITED STATES** 19 **ATTORNEY GENERAL,** 20 Respondent **.** 21

**_____________________________________** 22 23 **FOR PETITIONER:** Charles Christophe, New York, NY. 24 25 **FOR RESPONDENT:** Benjamin C. Mizer, Principal Deputy 26 Assistant Attorney General; Douglas 27 E. Ginsburg, Assistant Director; 28 Benjamin Mark Moss, Trial Attorney, 29 Office of Immigration Litigation, 30 United States Department of Justice, 31 Washington, D.C. 322 UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review is 3

DENIED. 4 Petitioner Nency Nency, a native and citizen of Indonesia, 5 seeks review of a November 24, 2014, decision of the BIA denying 6 her motion to reopen. In re Nency Nency , No. A099 587 585 7 (B.I.A. Nov. 24, 2014). We assume the parties’ familiarity 8 with the underlying facts and procedural history in this case. 9 We review the BIA’s denial of a motion to reopen for abuse 10 of discretion, “mindful that motions to reopen ‘are 11 disfavored.’” Ali v. Gonzales , 448 F.3d 515, 517 (2d Cir. 2006) 12 (per curiam) (quoting INS v. Doherty , 502 U.S. 314, 323 (1992)). 13 An alien seeking to reopen proceedings may file one motion to 14 reopen no later than 90 days after the final administrative 15 decision is rendered. 8 U.S.C. § 1229a(c)(7)(A), 16 (c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). However, the time and 17 numerical limitations do not apply if the motion is “based on 18 changed country conditions arising in the country of 19 nationality . . . if such evidence is material and was not 20 available and would not have been discovered or presented at 21 the previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 223 C.F.R. § 1003.2(c)(3)(ii). 1 Nency’s 2014 motion was untimely and number barred, and the 2 BIA was within its discretion to find no material change in 3 country conditions excusing the motion from those limitations. 4 The question on a motion to reopen is not whether conditions 5 are poor, but rather whether they have changed. 8 U.S.C. § 6 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii); Matter of 7

S-Y-G- , 24 I. & N. Dec. 247, 253 (BIA 2007) (comparing “the 8 evidence of country conditions submitted with the motion to 9 those that existed at the time of the merits hearing below”). 10 The BIA reasonably concluded that the “mistreatment of 11 Christians has, unfortunately, been a longstanding problem in 12 Indonesia,” and cited record evidence of riots and a church 13 burning in 1998 and attacks on Christians in 2002, 2003 and 2004. 14 The record supports this conclusion generally. See U.S. Dep’t 15 of State, Bureau of Democracy, H.R. and Lab., International 16 Religious Freedom Report (2005) (Indonesia) (stating that 17 “certain policies, laws, and official actions restricted 18 religious freedom, and the police and military occasionally 19 tolerated discrimination against and abuse of religious groups 20 by private actors”); U.S. Dep’t of State, Bureau of Democracy, 21 H.R. and Lab., International Religious Freedom Report (2006) 224 (Indonesia) (citing ongoing “political and economic tensions 1 between approximately equal populations of Christians and 2 Muslims [that] continued to cause sporadic violent episodes 3 resulting in deaths,” with the caveat that criminal motives may 4 have been at play). 5 Nency contends that in Indradjaja v. Holder , 737 F.3d 212 6 (2d Cir. 2013), we “found” that “violence against Christians 7 was on the rise in Indonesia,” id . at 216, and argues that her 8 evidence is more compelling than what was submitted there. 9 Neither point is accurate. The BIA denied Indradjaja’s motion 10 to reopen for failure to submit her own affidavit, and 11 alternatively discounted her expert’s affidavit because it did 12 not include the sources on which it was based. We granted the 13 petition for review because neither of those procedural rulings 14 had any basis in law or regulation. Indradjaja , 737 F.3d at 15 218-20. We did not (and indeed, could not) make factual 16 findings about current conditions in Indonesia. 8 U.S.C. 17 § 1252(b)(4)(A). We observed that Indradjaja’s decision to 18 submit an expert’s affidavit instead of her own was “logical 19 since Indradjaja, who had not been to Indonesia during the 20 period in question, would have had no personal knowledge of 21 changes that had occurred in her absence.” Indradjaja , 737 225 F.3d at 219. But Nency did the reverse: she submitted a handful 1 of newspaper articles about recent attacks on Christians, and 2 otherwise relied on her own af fidavit, in which she described 3 media reports of violence. Given that Nency is not an expert 4 on human rights in Indonesia, the BIA was within its discretion 5 to find that her affidavit did not warrant reopening. 6 For the foregoing reasons, the petition for review is 7 DENIED. As we have completed our rev iew, any stay of removal 8 that the Court previously granted in this petition is VACATED, 9 and any pending motion for a stay of removal in this petition 10 is DISMISSED as moot. Any pending request for oral argument 11 in this petition is DENIED in accordance with Federal Rule of 12 Appellate Procedure 34(a)(2), and S econd Circuit Local Rule 13 34.1(b). 14

FOR THE COURT: 15 Catherine O = Hagan Wolfe, Clerk 16