United States Court of Appeals

For the First Circuit

No. 23-1241

EDWIN KURNIAWAN TULUNG, ELIZABETH ANGELIA KARAUWAN,

ENRICO GERALDWIN TULUNG,

Petitioners,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE

BOARD OF IMMIGRATION APPEALS

Before

Kayatta, Selya, and Howard,

Circuit Judges.

William A. Hahn, with whom Hahn & Matkov was on brief, for 

petitioner.

Corey L. Farrell, Senior Litigation Counsel, Office of 

Immigration Litigation, Civil Division, U.S. Department of 

Justice, with whom Brian M. Boynton, Principal Deputy Assistant 

Attorney General, Civil Division, and Sabatino F. Leo, Assistant 

Director, Office of Immigration Litigation, were on brief, for 

respondent.

May 21, 2024

 
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HOWARD, Circuit Judge. Petitioners challenge the Board 

of Immigration Appeals' (BIA) denial of their consolidated motions

to reopen, reconsider, and amend. The BIA correctly disposed of 

the procedurally improper motion to amend and the substantively 

deficient motion to reconsider. We thus deny in part the petition 

for review and affirm the denials of the motions to reconsider and 

amend. But in reviewing the motion to reopen, the BIA discarded

evidence -- without considering its merits -- on legally 

unjustifiable bases. The BIA retains wide latitude to weigh such 

evidence but may not ignore it based on legal error. Resultingly, 

we grant in part the petition for review, vacate the denial of the 

motion to reopen, and remand for further proceedings. 

I.

Fearing persecution on account of their Christian faith, 

spouses Edwin Kurniawan Tulung and Elizabeth Angelia Karauwan fled 

Indonesia with their one-year-old son, Enrico Geraldwin Tulung, in 

2004. The family, all Indonesian citizens, entered the United 

States on tourist visas. Edwin, for himself and on behalf of his 

wife and son, filed applications for asylum, withholding of 

removal, and protection under the Convention Against Torture

(CAT). An Immigration Judge denied the application in 2009, and 

two years later the BIA affirmed, reasoning that past harm did not 

rise to the level of persecution and that future persecution was 
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not sufficiently likely. We denied the Tulungs'1 petition for 

review in 2012. 

The Tulungs filed their first motion to reopen based on 

changed country conditions two years later. The BIA denied the 

motion, explaining that the Tulungs' evidence of changed 

conditions in Indonesia was speculative. The Tulungs did not 

appeal. 

The Tulungs filed their second motion to reopen based on 

changed country conditions in 2020. The BIA denied the motion on 

two grounds in June 2022. First, the BIA noted that the Tulungs 

had not submitted updated applications for protection or relief,

as required by 8 C.F.R. § 1003.2(c)(1). Second, the BIA concluded 

that the Tulungs had not demonstrated that country conditions had 

materially changed since the 2014 denial of their first motion to 

reopen. The Tulungs again did not seek judicial review. 

Instead, the Tulungs filed the three consolidated 

motions that are the subjects of this appeal. These motions, 

submitted in July 2022, included (i) a third motion to reopen,

(ii) a motion to reconsider the denial of the second motion to 

reopen, and (iii) a motion to amend the second motion to reopen. 

In their third motion to reopen, the Tulungs submitted new evidence 

1 In the interest of concision -- but with apologies to 

Elizabeth -- we refer to Edwin, Elizabeth, and Enrico collectively 

as the Tulungs. 
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of changed conditions in Indonesia and, this time, updated 

applications for protection and relief.2 In their motion to 

reconsider, the Tulungs asked the BIA to reconsider its denial of 

their second motion to reopen because recent BIA decisions finding 

changed conditions in Indonesia demonstrated that the denial of 

the second motion to reopen was erroneous. In their motion to 

amend, the Tulungs asked the BIA to allow them to amend their 

second motion to reopen by adding to it all the evidence discussed 

in their consolidated motions to reopen and reconsider. 

The BIA denied the third motion to reopen for three

reasons: First, the new evidence "describe[d] country conditions 

as they existed prior to" the second motion to reopen. Second, 

the new evidence was "cumulative of the evidence already submitted 

with the prior motion to reopen." Third, the Tulungs did not show 

that information in the updated applications and declaration "was 

previously unavailable when they filed their prior motion to 

reopen." The BIA denied the motion to reconsider because the 

Tulungs failed to challenge an independently dispositive ground 

for the BIA's denial of their second motion to reopen, because the 

2 The Tulungs' changed-conditions evidence included copies of 

recent BIA decisions finding changed conditions in Indonesia, an 

updated statement from Edwin, internet traffic threatening other 

Indonesian asylum applicants, a U.S. government report on 

religious freedom in Indonesia, and several articles detailing 

church closings, bombings, and other acts of violence directed at 

Christian Indonesians. 
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recent BIA decisions could have been raised previously, and because 

the recent decisions did not demonstrate an error of law or fact. 

The BIA did not address the motion to amend. The Tulungs appealed

the denial of all three motions. 

II.

The Immigration and Nationality Act generally limits

petitioners to a single motion to reopen filed within ninety days 

of a removal order. 8 U.S.C. § 1229a(c)(7)(A), (C)(i); see 8 

C.F.R. § 1003.2(c)(2). But otherwise untimely and number-barred 

motions to reopen may succeed if petitioners satisfy two 

requirements. See Cabas v. Barr, 928 F.3d 177, 180-81 (1st Cir. 

2019); 8 C.F.R. § 1003.2(c)(3)(ii).3 First, petitioners must 

establish changed conditions in their homeland. 8 U.S.C. 

§ 1229a(c)(7)(C)(ii); see Garcia-Aguilar v. Whitaker, 913 F.3d 

215, 218 (1st Cir. 2019). Second, they must make a prima facie 

case of eligibility for substantive relief. See Garcia-Aguilar, 

913 F.3d at 218; Cabas, 928 F.3d at 181. 

To establish changed conditions, petitioners must 

demonstrate that country conditions have "intensified or 

deteriorated" since their merits hearing. Cabas, 928 F.3d at 181 

3 Because the government conceded in its brief and at oral 

argument that motions to reopen based on changed conditions are 

not subject to the statutory number bar, we need not address this 

issue further. But cf. Djie v. Garland, 39 F.4th 280, 284 (5th 

Cir. 2022) (invalidating 8 C.F.R. § 1003.2(c)(3)'s exception to 8 

U.S.C. § 1229a(c)(7)(A)'s number bar as arbitrary and capricious). 
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(quoting Sihotang v. Sessions, 900 F.3d 46, 50 (1st Cir. 2018)); 

Garcia-Aguilar, 913 F.3d at 218 (clarifying that changed

conditions must represent "more than a continuation of previously 

existing conditions"). The evidence presented must be material 

and unavailable at the time of the merits hearing. Sihotang, 900 

F.3d at 50; see 8 C.F.R. § 1003.2(c)(1). 

The BIA disregarded the changed-conditions evidence in 

the Tulungs' third and final motion to reopen because the evidence

described conditions prior to, was cumulative of, and was available 

at the time of their second motion to reopen. Because the BIA 

dismissed the Tulungs' third motion to reopen for failure to 

establish changed conditions, it did not address whether the 

Tulungs had made prima facie cases for asylum, withholding of 

removal, or CAT protection. 

Motions to reopen pose a threat to finality and 

efficiency, so we review the BIA's denials of them for abuse of 

discretion. Nantume v. Barr, 931 F.3d 35, 38 (1st Cir. 2019); 

Sihotang, 900 F.3d at 49-50. Though highly deferential, this 

standard is "not [a] toothless one." Perera v. Holder, 750 F.3d 

25, 28 (1st Cir. 2014) (alteration in original) (internal 

quotations omitted) (quoting Aponte v. Holder, 610 F.3d 1, 4 (1st 

Cir. 2010)); see also Sihotang, 900 F.3d at 48. The Tulungs may 

prevail on appeal if they demonstrate that the BIA either 

"exercised its judgment in an arbitrary, capricious, or irrational 
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manner" or "committed an error of law." Sihotang, 900 F.3d at 50

(quoting Bbale v. Lynch, 840 F.3d 63, 66 (1st Cir. 2016)). We 

conclude the BIA committed an error of law here. 

We have stated, time and again, that the BIA must compare 

"the evidence of country conditions submitted with [a] motion [to 

reopen] to those that existed at the time of the merits hearing."4 

Molina v. Barr, 952 F.3d 25, 31 (1st Cir. 2020) (emphasis added) 

(quoting Haizem Liu v. Holder, 727 F.3d 53, 57 (1st Cir. 2013)); 

Liu Jin Lin v. Barr, 944 F.3d 57, 61 (1st Cir. 2019); Nantume, 931 

F.3d at 38; Twum v. Barr, 930 F.3d 10, 20 (1st Cir. 2019); Wanjiku

v. Barr, 918 F.3d 215, 220 (1st Cir. 2019); Sihotang, 900 F.3d at 

50; Sánchez-Romero v. Sessions, 865 F.3d 43, 45 (1st Cir. 2017); 

Xin Qiang Liu v. Lynch, 802 F.3d 69, 76 (1st Cir. 2015). The BIA 

should be especially familiar with this requirement, as it comes 

from BIA precedent. See In re S-Y-G-, 24 I&N Dec. 247, 253 (BIA 

2007); cf. 8 C.F.R. § 1003.1(g) (requiring BIA to follow its own 

precedent). The BIA cannot ignore evidence merely because the 

evidence describes conditions as they existed prior to a previous 

motion to reopen.

4 This precedent is strong enough that the government concedes

it, noting that the BIA's chosen comparator "is in tension with 

caselaw holding that, '[i]n evaluating changed conditions, the BIA 

compares the evidence of country conditions submitted with the 

motion to those that existed at the time of the merits hearing.'" 
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Nor can the BIA disregard evidence because it is

"cumulative" of evidence submitted in a prior motion to reopen. 

When the BIA describes evidence as "cumulative," we interpret the 

agency "to conclude that [the evidence] demonstrates the 

continuation" of country conditions.5 Sugiarto v. Holder, 761 F.3d 

102, 104 (1st Cir. 2014) (emphasis added). But, again, the BIA 

must assess whether evidence suggests a continuation of, rather 

than a deterioration of, country conditions "between the time of 

[the] merits hearing and [the] motion to reopen." Cabas, 928 F.3d 

at 181; see Sánchez-Romero, 865 F.3d at 45-46. This principle 

holds for both first-time and subsequent motions to reopen. See

Nantume, 931 F.3d at 39 (comparing evidence in second motion to 

reopen to evidence from original merits hearing); Xiao He Chen v. 

Lynch, 825 F.3d 83, 86-87 (1st Cir. 2016) (same); Xin Qiang Liu, 

802 F.3d at 72-73, 75-76 (same); Perera, 750 F.3d at 29 (same). 

Nothing in our caselaw suggests that the BIA can or should compare 

changed-conditions evidence from a new motion to reopen to evidence 

from an old motion to reopen, as the BIA here did. 

Nor, finally, can the BIA disregard evidence because the 

evidence was available at the time of a prior motion to reopen. 

5 Even if the BIA intends "cumulative" to stand for something 

other than "continuous," cumulative evidence must be cumulative of 

some other evidence. This leaves the BIA in the same untenable 

position: arguing that evidence from a prior motion to reopen, 

rather than evidence from the original merits hearing, is the 

relevant comparator. 
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We require motions to reopen, including successive motions to 

reopen, to contain evidence that was unavailable at the time of 

the merits hearing. See Nantume, 931 F.3d at 38-39; Perera, 750 

F.3d at 29. Regulatory text supports this well-established 

principle. The relevant regulation, 8 C.F.R. § 1003.2(c)(3)(ii),

requires petitioners to show that their changed-conditions

evidence was unavailable at their "hearing," and the regulation 

consistently refers to merits proceedings as "hearings."

Unsurprisingly, but tellingly, the regulation reliably refers to

motions to reopen as "motions." See, e.g., id. § 1003.2(c)(1) ("A 

motion to reopen proceedings shall state the new facts that will 

be proven at a hearing to be held if the motion is granted."). 

Changed-conditions evidence must have been unavailable at the time 

of the merits hearing, but its availability at the time of a prior 

motion to reopen is immaterial. 

In sum, the relevant evidentiary comparator for changed 

country conditions is the original merits hearing, not a previous 

motion to reopen. This principle has solid foundations in caselaw 

and regulatory text. It also makes good sense. If we allowed the 

evidentiary comparator to be a prior motion to reopen, the time 

gap between motions would significantly and arbitrarily affect 

changed-conditions determinations. Imagine a petitioner who

applies for asylum based on a single instance of harassment. After 

the BIA denies the original merits petition, similarly situated 
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individuals in the petitioner's country of origin are subject to 

the same harassment each year. If the relevant comparator for 

changed-conditions evidence is the previous motion to reopen, a 

petitioner who files a motion to reopen each year cannot 

demonstrate deterioration of conditions, regardless of how many 

years the harassment continues. But clearly conditions have 

changed; while harassment was once an isolated occurrence, it is 

now regular. As long as 8 C.F.R. § 1003.2(c)(3)(ii) permits 

multiple motions to reopen, new evidence must be compared to 

evidence at the time of the original merits hearing. 

While the BIA has broad discretion to weigh evidence, it 

may not ignore swaths of the record on legally unjustifiable bases. 

When it does so, we must remand the issue to the BIA for 

reconsideration under the proper legal framework. 

III.

The BIA's denials of the Tulungs' motions to reconsider 

and amend contain no comparable error. A motion to reconsider 

requires a petitioner to identify specific factual or legal error 

in the prior decision. See Kuffour v. Sessions, 907 F.3d 112, 114 

(1st Cir. 2018). The Tulungs argue that the BIA erred in denying 

their second motion to reopen because several recent BIA decisions 

have granted Indonesian-Christian petitioners' motions to reopen 

based on changed conditions. But these unpublished BIA decisions 

carry no precedential value, see Cardona v. Sessions, 848 F.3d 
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519, 523 n.5 (1st Cir. 2017), and are not a representative sample 

of changed-conditions cases involving Indonesian Christians, see, 

e.g., Kuncoro v. Garland, 849 F. App'x 21, 21 (2d Cir. 2021)

(summary order). In any case, the Tulungs do not attempt to

establish that they are similarly situated to the petitioners in 

the cited cases. See Morgan v. Holder, 634 F.3d 53, 61 (1st Cir. 

2011) ("Asylum cases, virtually by definition, call for 

individualized determinations.").6 Lacking legal or factual error, 

the Tulungs' motion to reconsider has no basis. 

A motion to amend, even more simply, is not the proper 

procedural tool through which the Tulungs may seek reexamination 

of the denial of a motion to reopen. See 8 U.S.C. § 1229a(c)(6); 

8 C.F.R. § 1003.2(b). The Tulungs' motion to amend is most 

charitably construed as a motion to reconsider, which the BIA 

properly addressed and denied. 

***

For all these reasons, we deny in part the petition for 

review and affirm the BIA's denial of the consolidated motions to 

reconsider and amend. We also grant in part the petition for 

6 Nor do the Tulungs address the BIA's finding that the motion 

to reconsider failed to challenge an independently dispositive 

ground for the BIA's denial of their second motion to reopen --

specifically, that the Tulungs "did not submit appropriate 

applications for relief." They thus waive any objection to the 

BIA's denial of their motion to reconsider on this basis. See

United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). 
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review, vacate the BIA's denial of the motion to reopen, and remand 

for further proceedings.