Henri Nababan v. Merrick Garland ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HENRI NABABAN; HARLENA ROSE No. 18-72548
SILALAHI,
Petitioners, Agency Nos.
A078-020-176
v. A096-349-826
MERRICK B. GARLAND, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 13, 2021
Pasadena, California
Filed November 23, 2021
Before: Richard A. Paez and Lawrence VanDyke, Circuit
Judges, and Sharon L. Gleason, * District Judge.
Opinion by Judge Gleason;
Dissent by Judge VanDyke
*
The Honorable Sharon L. Gleason, United States District Judge for
the District of Alaska, sitting by designation.
2 NABABAN V. GARLAND
SUMMARY **
Immigration
Granting Henri Nababan and Harlena Rose Silalahi’s
petition for review of an order of the Board of Immigration
Appeals denying their second motion to reopen their
applications for asylum, withholding of removal, and relief
under the Convention Against Torture, vacating the order of
removal, and remanding, the panel held that the Board erred
by failing to assess Petitioners’ individualized risk of
persecution in Indonesia due to their identity as evangelical
Christians.
The panel explained that the Board correctly recognized
that Christians in Indonesia are a disfavored group, but it
failed to account for Petitioners’ status as evangelical
Christians or the evidence they presented indicating that
evangelical Christians have experienced a particular
increase in violence and persecution, beyond that
experienced by Indonesian Christians in general.
The panel remanded for the Board to assess whether
country conditions in Indonesia have materially changed for
evangelical Christians in particular, as distinct from
Christians in general. Moreover, the panel instructed that if
the Board finds materially changed country conditions, it
should consider the impact of Petitioners’ recent leadership
roles in their church, which the Board previously
characterized as changes in personal circumstances, and
determine whether Petitioners have established prima facie
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
NABABAN V. GARLAND 3
eligibility for asylum, withholding of removal, and CAT
relief.
Dissenting, Judge VanDyke wrote that the majority
remands to the Board due to the Board’s purported failure to
assess Petitioners’ individualized risk as “evangelical
Christians” within the broader group of Indonesian
Christians generally, but in doing so, clings to a myopic
focus on the phrase “evangelical Christians,” which the
record reveals is at most mere semantics and a
misrepresentation of the Board’s decision. Judge VanDyke
wrote that simply because the Board did not ritualistically
chant the precise phrase “evangelical Christians” in its
decision cannot be a reason to ignore that the Board
appropriately considered the particular risk that Petitioners
might face as Christians who evangelize. Moreover, Judge
VanDyke wrote that the majority relies on an expert affidavit
that fails to provide any evidence or analysis showing that
“evangelical Christians” are treated any differently in
Indonesia than Christians generally—or, for that matter, all
religious minorities. Judge VanDyke explained that once
one strips away the majority’s magic-word requirement,
what’s left is the question of whether Petitioners have shown
enough of a change in country conditions to surmount the
high bar for reopening. Judge VanDyke wrote that the Board
addressed this exact question, in such a way that not even the
majority can pretend is wrong without inventing some
undefined group the Board supposedly failed to consider.
4 NABABAN V. GARLAND
COUNSEL
Howard R. Davis (argued), Law Office of Howard R. Davis,
Glendale, California, for Petitioner.
Remi da Rocha-Afodu (argued), Trial Attorney; Mary Jane
Cadaux, Assistant Director; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Respondent.
OPINION
GLEASON, District Judge:
Henri Nababan and Harlena Rose Silalahi (Petitioners)
petition for review of an order of the Board of Immigration
Appeals (BIA) denying their second motion to reopen their
applications for asylum, withholding of removal, and relief
under the Convention Against Torture (CAT). Exercising
jurisdiction under 8 U.S.C. § 1252(a)(1), we grant the
petition for review, vacate the orders of removal, and remand
for further proceedings consistent with this opinion.
I
Petitioners are Indonesian nationals and members of the
Seventh Day Adventist (SDA) Church. Nababan was
admitted to the United States in December 1999 on a
temporary nonimmigration visa. He remained in the country
beyond the authorized time period without permission.
Silalahi was admitted to the United States in February 2002
on a temporary nonimmigrant visa and also remained
beyond the authorized period without permission.
Petitioners married each other in 2003.
NABABAN V. GARLAND 5
In 2003, Petitioners were each served a Notice to Appear
and charged with removability under 8 U.S.C.
§ 1182(a)(6)(A)(i). Petitioners conceded removability and
sought relief in the forms of asylum, withholding of removal,
and claims under the CAT. Petitioners principally claimed
fear of persecution and torture in Indonesia on account of
their SDA faith. Silalahi testified that she had not been
allowed to spread the word of her faith when she had resided
in Indonesia and would be unable to safely spread the word
of her religion if she returned to Indonesia. Nababan
testified that he was a deacon in the SDA, with the
responsibilities of cleaning the church, visiting ill members,
and participating in spreading the Gospel.
On April 1, 2009, the IJ issued an oral decision denying
Petitioners’ applications and ordering them removed to
Indonesia. The IJ denied Silalahi’s application for asylum
because she had “failed to establish past persecution [or] the
likelihood of future persecution.” The IJ acknowledged that
Petitioners were members of a disfavored group in Indonesia
as Christians but ruled that they had not demonstrated that
their fear of harm was distinct from that of any other
Christians in Indonesia. Additionally, the IJ denied both
Petitioners relief under the CAT because they did not prove
that it was more likely than not that they would face torture
in Indonesia.
The BIA dismissed Petitioners’ timely appeal on
April 30, 2010. With regard to the withholding of removal
claims, the BIA found that the incidents of harassment and
discrimination experienced by Petitioners in Indonesia did
not constitute past persecution. The BIA also found that
Petitioners did not establish a “well-founded fear of future
persecution,” stating that the record evidence did “not
document widespread mistreatment of Christians”; rather,
6 NABABAN V. GARLAND
the evidence demonstrated sporadic incidents against
Christians that were limited to specific parts of Indonesia.
Additionally, the BIA assumed that Petitioners were
members of a disfavored group but nonetheless concluded
that “they have not established that they face a ‘unique risk
of persecution’ that is ‘distinct from [their] mere
membership in a disfavored group.’” Because Petitioners
failed to submit evidence of individualized harm, the BIA
found they were not eligible for asylum or withholding of
removal under the disfavored group analysis. The BIA also
rejected Petitioners’ CAT claims.
Petitioners then sought review from this court. The court
denied the petition in September 2012. Nababan v. Holder,
479 F. App’x 118 (9th Cir. 2012) (unpublished). The court
held that substantial evidence supported the BIA’s
conclusions that “petitioners did not establish their
experiences in Indonesia rose to the level of persecution”
and that, “even under a disfavored group analysis, petitioners
ha[d] not demonstrated sufficient individualized risk of
persecution to establish eligibility for asylum or withholding
of removal.” Id. at *1. The court also held that substantial
evidence supported the BIA’s rejection of Petitioners’ CAT
claims. Id.On November 21, 2012, Petitioners filed their first
motion to reopen to reapply for asylum, withholding of
removal, and protection under the CAT based on changed
country conditions in Indonesia. Petitioners claimed that
“[a]nti-Christian sentiment ha[d] increased in the recent
months.” Petitioners also submitted evidence of continuing
religious intolerance and evidence that Indonesian
government authorities had not always responded to such
incidents.
NABABAN V. GARLAND 7
The BIA determined that Petitioners’ motion was
untimely, then evaluated whether Petitioners’ claims fell
within the only applicable exception to the timeliness
requirement: changed country conditions. Comparing the
evidence of Indonesia’s conditions submitted with the
motion to those that existed at the time of Petitioners’ April
2009 removal hearing, the BIA concluded that Petitioners
had not met their “heavy burden” to demonstrate a material
change in country conditions. The BIA found that “violence
against Christians in Indonesia is neither systemic nor
pervasive, but has continued sporadically over the years”
and that “while Christians are a ‘disfavored group’ in
Indonesia, . . . the respondents have not offered evidence
showing that they face an individualized risk of future
persecution on account of their religion so as to distinguish
their risk of persecution from the generalized risk felt by all
Christians in Indonesia.” Accordingly, the BIA denied
Petitioners’ untimely motion. 1
Petitioners then again sought review from this court, and
we again denied review. Nababan v. Lynch, 660 F. App’x
524 (9th Cir. 2016) (unpublished). The court held that the
“BIA did not abuse its discretion in finding that Petitioners
failed to establish materially changed circumstances in
Indonesia to qualify for an exception to the time limitations
for a motion to reopen.” Id. at 525. As the court explained,
“[t]he BIA recognized that religious intolerance in Indonesia
is on-going” but nonetheless “concluded that the violence
against Christians was neither systemic nor pervasive.” Id.1
The BIA did not address Petitioners’ CAT claims. It appears that
Petitioners did not appreciably raise the CAT claims in their first motion
to reopen.
8 NABABAN V. GARLAND
On January 2, 2018, Petitioners filed their second motion
to reopen, which is the subject of this petition. Petitioners
sought to reapply for asylum, withholding of removal, and
CAT protection based on “changed country conditions in
Indonesia that materially affect their new leadership roles in
the Seventh Day Adventist Church.” Petitioners asserted
that there had been an “eruption of attacks against Christians
as a whole starting in 2016.” Petitioners stressed that they
practiced evangelical Christianity, in which a key tenet of
their faith is spreading the Gospel, and noted the heightened
danger they would face if they were to proselytize in
Indonesia. Petitioners also explained that, in addition to
being a deacon in the church, Nababan had been chosen as a
church elder for the 2018–2019 year, and Silalahi had been
chosen as a deaconess for the 2018–2019 year in addition to
her continued work as a Sabbath schoolteacher and church
pianist. Petitioners contended that their new leadership
positions in the SDA would place them in greater danger in
light of Indonesia’s recent “rigorous enforcement of anti-
blasphemy legislation against evangelical Christians” and
“an increase in violence against Christian evangelicals
perpetrated by Muslim radicals and hardline Islamic groups,
whom the Indonesian government supports or fails to
suppress.” Petitioners provided a letter from Silalahi’s
father, an SDA member in Indonesia, who explained that he
had been recently beaten, kicked, and spit on for
proselytizing to a Muslim. Petitioners also provided
evidence that the front door of an SDA church had been
intentionally burnt down in February 2017 and of protests in
late 2016 sparked by a Christian politician’s alleged
blasphemy of the Koran. After the protests, the Christian
politician—popularly known as Ahok—was prosecuted
under Indonesia’s blasphemy laws and sentenced to two
years’ imprisonment. Petitioners further submitted several
NABABAN V. GARLAND 9
news articles and reports that discussed religious intolerance
in Indonesia.
Petitioners included an affidavit from Jeffrey A. Winters,
Ph.D, an expert in the society, economy, and politics of
Indonesia. Dr. Winters explained that “radical Islam has
gained significantly in strength in Indonesia since the end of
2012, and [] from that date forward the level of violence and
intolerance directed at religious minorities has increased at a
shocking rate.” He acknowledged that all non-Muslims are
under threat in Indonesia as intolerance grows and violence
against religious minorities becomes more widespread.
Since Petitioners are evangelical Christians, however, he
opined that they are at a particularly heightened risk of such
violence “because a core part of their faith and practice is to
go out into their communities and ‘spread the Gospel,’ which
in Indonesia is deemed to be predatory proselytizing.”
Another expert, Professor Mark Cammack, J.D., stressed the
heightened risk of vigilante violence that Petitioners would
face if they were compelled to return to Indonesia and
engaged in evangelism in accordance with their beliefs. 2
2
Notwithstanding these expert affidavits and the other evidence, the
dissent asserts that Petitioners have not “provided a stitch of evidence in
support of Petitioners’ motion to reopen evincing that ‘evangelical
Christians’ as a separate group are exposed to a higher risk of persecution
in Indonesia than Christians in general.” Although the experts’ opinions
are compelling, it is also self-evident that if all minority religions are at
risk in Indonesia, then those that proselytize by seeking to convert others
to their beliefs are inherently at greater risk than those Christians and
other minority religious believers who practice their beliefs in private.
As the First Circuit noted in Sihotang v. Sessions, here too “the record
reflects a ramping-up of religious intolerance, increasing over time, in
ways that a reasonable observer might find uniquely problematic for
evangelical Christians.” 900 F.3d 46, 51, 53 (1st Cir. 2018) (“In
10 NABABAN V. GARLAND
The BIA denied Petitioners’ motion on August 28, 2018.
The BIA first summarized Petitioners’ claims, noting that
they were active members and leaders in the SDA Church
and that a tenet of the SDA Church is to spread the Gospel.
The BIA then compared Petitioners’ evidence of country
conditions submitted with the most recent motion to the
conditions at the time of the 2009 removal hearing. The BIA
stated that the 2009 evidence “reveals that the Indonesia
Government generally respected religious freedom, and
Protestantism received official recognition.” However, the
BIA had recognized in 2009 that the “Indonesian
Government sometimes failed to protect persons from
discrimination and abuse based on religion” and that
Christian Indonesians were considered a disfavored group
prior to the 2009 hearing. The BIA then recounted
Petitioners’ current evidence, including “evidence of attacks
against Christian churches, including an SDA church”; the
affidavits from Petitioners’ two experts; and the letter from
Ms. Silalahi’s father, describing his beating in 2017 for
providing a Bible and religious instruction to a Muslim. The
BIA noted that much of Petitioners’ current evidence related
to “the events leading up to and following demonstrations in
2016 in Jakarta that were instigated by Muslim radicals
following blasphemy charges against [the] popular Christian
politician [Ahok].”
After identifying Petitioners’ evidence, the BIA
determined that Petitioners’ “recent leadership roles in their
church are changes in their personal circumstances rather
than a change in circumstances or conditions in Indonesia.”
In comparing the conditions at the time of the 2009 removal
hearing with those at the time of the most recent motion—
particular, Islamic fundamentalist fervor seems to have intensified, such
that evangelical Christians may now be at special risk in Indonesia.”).
NABABAN V. GARLAND 11
filed in 2018—the BIA found that Christians in Indonesia
continue to be a “disfavored group” but that Petitioners’ new
evidence did “not reflect materially changed conditions
affecting [their] ‘individualized risk’ of persecution to
warrant reopening.” In its analysis, the BIA did not consider
whether the fact that Petitioners are evangelical Christians
places them at increased risk of persecution as compared to
other Christians.
The BIA ultimately determined that Petitioners “have
not met their ‘heavy burden’ required for reopening under
the ‘changed country conditions exception’ to the filing
restrictions.” Rather, the BIA held that Petitioners had only
offered “media articles and statements reflecting difficulties
faced by Christians in Indonesia.” The BIA further stated
that Petitioners “have not shown that they are similarly
situated to the well-known politician [Ahok] who was
subjected to blasphemy charges.” Lastly, the BIA declined
to exercise its limited sua sponte authority to reopen the
proceedings. Accordingly, the BIA denied Petitioners’
motion to reopen. This timely petition for review followed.
II
The Court reviews the BIA’s denial of a motion to
reopen for abuse of discretion. Najmabadi v. Holder,
597 F.3d 983, 986 (9th Cir. 2010). The BIA abuses its
discretion when its decision is arbitrary, irrational or
contrary to law. Id. We review the BIA’s determination of
purely legal questions de novo and the BIA’s factual
findings for substantial evidence. Gonzalez-Caraveo v.
Sessions, 882 F.3d 885, 889, 895 (9th Cir. 2018). The BIA
“must show proper consideration of all factors.” Bhasin v.
Gonzales, 423 F.3d 977, 983 (9th Cir. 2005). The BIA
“commit[s] legal error when it fail[s] to analyze [a
petitioner’s] individualized threat of persecution” as part of
12 NABABAN V. GARLAND
a disfavored group. Salim v. Lynch, 831 F.3d 1133, 1140
(9th Cir. 2016).
III
Generally, a party wishing to file a motion to reopen
must do so within ninety days. 8 C.F.R. § 1003.2(c)(2).
However, the ninety-day time limit does not apply when the
motion to reopen is “based on changed circumstances arising
in the country of nationality or in the country to which
deportation has been ordered, if such evidence is material
and was not available and could not have been discovered or
presented at the previous hearing.” Id. § 1003.2(c)(3)(ii).
The BIA correctly recognized that Christians in
Indonesia are a disfavored group. See Tampubolon v.
Holder, 610 F. 3d 1056, 1058 (9th Cir. 2010). It failed,
however, to account for Petitioners’ status as evangelical
Christians or the evidence they presented indicating that
evangelical Christians have experienced a particular
increase in violence and persecution, beyond that
experienced by Indonesian Christians in general. In
recounting the evidence Petitioners submitted with their
motion to reopen, the BIA did note that Petitioners were
members of the SDA Church, in which a key tenet of their
faith is spreading the Gospel. But that appears to be the full
extent of the BIA’s consideration of Petitioners’ evangelical
faith. The BIA’s analysis repeatedly described the
disfavored group at issue as the broader group of “Christians
in Indonesia.” For example, the BIA cited our court’s
precedent to explain that “prior to [Petitioners’] removal
hearing, Christian Indonesians were determined to be
members of a ‘disfavored group.’” See Sael v. Ashcroft,
386 F.3d 922, 927 (9th Cir. 2004). Moreover, despite
Petitioners’ repeated references to “evangelical Christians”
and proselytizing activities in their motion, the BIA did not
NABABAN V. GARLAND 13
use those terms. Accordingly, while the BIA obliquely
recognized Petitioners’ evangelical faith and activities in its
summary of Petitioners’ claims, its analysis failed to give
Petitioners’ evangelical faith “proper consideration.”
Bhasin, 423 F.3d at 983.
We note that other circuits have recognized that the BIA
should consider the unique risks faced by evangelical
Christians and Christians who publicly proselytize as
distinct from Christians in Indonesia as a general group. 3 In
Sihotang, the First Circuit explained that its prior decisions
rejecting claims of changed country conditions for
Christians in Indonesia did not dictate the same result for
evangelical Christians, because their “religious beliefs . . .
and therefore their experiences with religious intolerance []
were different in kind, not just in degree.” 900 F.3d at 53.
The court noted that the record “reflected[ed] a ramping-up
of religious intolerance . . . that a reasonable observer might
find uniquely problematic for evangelical Christians” due to
the “public nature” of their faith. Id. Similarly, the Third
Circuit cited to Sihotang in Liem v. Attorney General,
explaining that an “increase in religious intolerance in
Indonesia” could be especially problematic for the petitioner
because as a minister in his community, he was practicing
his Christian faith publicly. 921 F.3d 388, 400 (3d Cir.
2019). Both the First and Third Circuits granted the petitions
for review and remanded to the BIA for proper consideration
3
The dissent questions the ability of immigration courts or the BIA
to determine when a petitioner is an “evangelical Christian, for whom
public proselytizing is a religious obligation.” Sihotang, 900 F.3d at 50.
We do not believe that such identification presents a problem in this case.
Petitioners are members of a well-known evangelical church; have
submitted a letter from Ms. Silalahi’s father concerning an attack
stemming from proselytizing; and have professed their belief in
spreading their faith to non-Christians.
14 NABABAN V. GARLAND
of the evidence concerning changed conditions for
evangelical Christians and Christians who practice their faith
publicly. Sihotang, 900 F.3d at 53; Liem, 921 F.3d at 401.
The dissent contends that the majority “faults the BIA
for not addressing something [i.e., Petitioners’ evangelical
faith] that was never actually presented to the BIA[.]” But
that “something” was clearly presented to the BIA in
Petitioners’ motion to reopen. Petitioners moved to reopen
principally on the basis that they faced a unique risk of
persecution as evangelical Christians for whom
proselytizing is a religious obligation, distinct from the
larger disfavored group of Christians in Indonesia.
For the aforementioned reasons, we hold that the BIA
committed legal error because it did not assess the
individualized risk of persecution that Petitioners face due to
their identity as evangelical Christians. Accordingly, we
grant the petition for review and remand to the BIA. On
remand, the BIA should assess whether country conditions
in Indonesia have materially changed for evangelical
Christians in particular, as distinct from Christians in
general. If the BIA finds materially changed country
conditions, the BIA should consider the impact of
Petitioners’ recent leadership roles in their church, which the
BIA previously characterized as changes in personal
circumstances, see Rodriguez v. Garland, 990 F.3d 1205,
1210–11 (9th Cir. 2021) (“Changes in a petitioner’s personal
circumstances are only relevant where those changes are
related to the changed country conditions that form the basis
for the motion to reopen.”), and determine whether
Petitioners have established prima facie eligibility for
asylum, withholding of removal, and relief under the CAT,
see Agonafer v. Sessions, 859 F.3d 1198, 1204 (9th Cir.
2017).
NABABAN V. GARLAND 15
PETITION FOR REVIEW GRANTED, ORDERS
OF REMOVAL VACATED, AND REMANDED FOR
FURTHER PROCEEDINGS.
VANDYKE, Circuit Judge, dissenting:
Our circuit’s immigration jurisprudence is a perpetually
embarrassing illustration of how tough it is for judges to
keep to our proper role, which Congress has narrowly
circumscribed, tasking us with monitoring an area of law
mostly assigned to the executive branch of government. The
majority’s unwarranted reversal in this case is the latest
specimen of our playing BIA-for-a-day instead of genuinely
deferring to the agency’s decisions.
Often, I’m baffled why my colleagues strain to prevent
removal in some of the cases that come before us,
particularly where the petitioners have a disturbing criminal
history. 1 But in this case, it’s easy to see why one would
1
See, e.g., Afanador v. Garland, 11 F.4th 985, 988, 998 (9th Cir.
2021) (remanding for consideration of additional evidence from the
parties for a petitioner who had numerous arrests and convictions,
including two indecent exposure convictions); Agonafer v. Sessions,
859 F.3d 1198, 1201 n.1, 1206–07 (9th Cir. 2017) (remanding for
consideration of changed conditions for a petitioner who committed
sexual battery and lewd acts with a minor); Morales v. Gonzales,
478 F.3d 972, 978, 984 (9th Cir. 2007), abrogated on other grounds by
Anaya-Ortiz v. Holder, 594 F.3d 673, 677–78 (9th Cir. 2010) (remanding
for CAT relief determination for petitioner who communicated sexually
with minors); Avila-Arias v. Garland, 847 F. App’x 468, 472–73 (9th
Cir. 2021) (VanDyke, J., dissenting) (highlighting the need for deference
to the agency regarding its CAT determination because substantial
evidence supported the determination that the petitioner—who fractured
16 NABABAN V. GARLAND
want to help Petitioners Henri Nababan and Harlena Rose
Silalahi. They present a sympathetic case for asylum, as
Judge Pregerson lamented in one of their earlier
unsuccessful trips to our court. See Nababan v. Lynch,
660 F. App’x 524, 526 (9th Cir. 2016) (Pregerson, J.,
dissenting). But following the law and not your heart—
particularly when the two diverge—is the hard part of
judging. Constrained to the strictly limited role Congress
established for us, I cannot conclude that the BIA abused its
discretion, and so I must respectfully dissent.
In this case, the majority remands to the BIA due to the
BIA’s purported failure to assess Petitioners’ individualized
risk as “evangelical Christians” within the broader group of
Indonesian Christians generally. But in doing so, the
majority relies on an expert affidavit that fails to provide any
evidence or analysis showing that “evangelical Christians”
are treated any differently in Indonesia than Christians
generally—or, for that matter, all religious minorities. A
review of that expert affidavit, Petitioners’ own arguments,
and the actual text of the BIA’s opinion crumples the
majority’s rationale and shows how its holding is predicated
on a distinction without a difference. To understand how far
the majority strays to obtain its desired result, it is helpful to
review this case in context—where Petitioners have, for over
a decade, consistently characterized themselves as Seventh
Day Adventist (SDA) Christians who, like most Christians,
evangelize.
a victim’s skull with golf club, committed grand larceny, and strangled
the mother of his children—would likely not be tortured).
NABABAN V. GARLAND 17
I.
Petitioners first sought relief from removal more than a
decade ago in 2008. Before the IJ, Silalahi explained that
they were SDAs who were “always . . . so terrified . . . [for]
practicing our faith” in Indonesia. She particularly focused
on the fact that they were “prevented [from] spreading the
word or gospel to other people.” In Indonesia, she
explained, it was dangerous for them to distribute pamphlets
door-to-door “or spread the word to the world about Jesus.”
The IJ determined, however, that Petitioners failed to show
how their alleged past harm rose to the level of persecution
or torture.
Petitioners appealed to the BIA and, in doing so,
repeatedly emphasized their status as Christians who
actively “proselytize.” 2 They pointed to their leadership
roles and active engagement within the SDA church, noting
that Nababan was “very active in his [SDA] Church in
California, as a deacon, an associate for young families, and
in spreading the gospel.” And Silalahi was “in charge of the
children’s ministry and proselytizes as required by her
religion.” They also argued that conditions had worsened in
Indonesia since they left, pointing to increasing violence
against Christians, efforts to drive out non-Muslims and
2
Proselytize is synonymous with evangelize. See Evangelizing,
THESAURUS.COM, https://www.thesaurus.com/browse/evangelizing (last
visited Aug. 16, 2021). The Merriam-Webster Dictionary defines both
“proselytize” and “evangelize” as attempts to convert others to a faith.
Compare Proselytize, M ERRIAM -W EBSTER D ICTIONARY . COM , https:/
/www.merriam-webster.com/dictionary/proselytize (last visited
Aug. 16, 2021) (to induce someone to convert to one’s faith) with
Evangelize, MERRIAM-WEBSTERDICTIONARY.COM, https://www.merriam-
webster.com/dictionary/evangelize (last visited Aug. 16, 2021) (to
convert to Christianity).
18 NABABAN V. GARLAND
implement Sharia law, the burning of churches, the
beheading and killing of Christians, and violent protests
waged by the Muslim majority. “Indonesian-Christians, and
Seventh Day Adventists,” they argued, “are targets in a
country that accepts persecution and religious intolerance.”
And they reiterated that “both [Petitioners] have leadership
positions in their church, and both [Petitioners] are expected
to recruit new members to their church, an activity
prohibited in Indonesia.” And because “both [Petitioners]
hold important positions in their church . . . their claim is not
based on a generalized fear for all Christians, but for Seventh
Day Adventist Church leaders.” “The more active a
Christian is,” they explained, “the more likely Muslim
fanatics in Indonesia will target him.”
The BIA dismissed Petitioners’ appeal, concluding that
their claims of harm for “Christians such as” Petitioners did
not rise to the level of persecution or torture. A panel of our
court summarily affirmed the BIA. Nababan v. Holder,
479 F. App’x 118 (9th Cir. 2012).
In 2012, Petitioners moved to reopen their proceedings
based in part on a claimed increase of “[a]nti-Christian
sentiment” in Indonesia and “their family’s Christian
religion.” As evidence of the growth of the “anti-Christian[]
climate,” Petitioners pointed to harassment against persons
“seeking to convert Muslims to Christianity”—the paradigm
of “evangelical activities.” Petitioners also referenced
several other incidents of general “anti-Christian violence
[that] has grown over time.”
The BIA denied Petitioners’ motion. It acknowledged
Petitioners’ SDA affiliation but concluded that Petitioners
failed to establish any material change of circumstances.
Another panel majority of our court summarily affirmed the
BIA, again. Nababan, 660 F. App’x at 525.
NABABAN V. GARLAND 19
In 2017, Petitioners filed a second motion to reopen,
which is the subject of this petition. This time, however,
Petitioners added a simple semantic twist. Instead of
characterizing themselves as Christians who evangelize, as
they had for the last decade before the agency, they now
called themselves “evangelical Christians.”
Not too surprisingly, however, their arguments mirrored
those made in their previous filings. Just like in their original
appeal before the BIA almost a decade ago, Petitioners again
pointed to their leadership roles within their SDA church and
argued that they were afraid to return to Indonesia because
of their active involvement within the SDA church.
Although Petitioners now occupied different leadership
roles—Nababan served as a Deacon and Church Elder and
Silalahi served as a Deaconess—they did not explain how
their different leadership roles resulted in any increased risk.
Also, as in their original appeal before the BIA, Petitioners
pointed to violence and harassment targeting Christians, the
promotion of Sharia law, the rise in Islamic fundamentalism,
the burning of churches—including SDA churches—and
violent protests waged by Muslims. And throughout their
motion, Petitioners alternated between referring to
“evangelical Christians” and Christians who evangelize.
Petitioners submitted two expert affidavits in support of
their second motion to reopen from Dr. Winters and
Professor Mark Cammack. Both affidavits purported to
address the “threats facing Indonesian evangelical
Christians.” On close inspection, however, aside from their
introductory and conclusory summaries, neither affidavit
actually addressed how “evangelical Christians” as a group
are situated any differently from just “Christians” generally
in Indonesia—or, for that matter, any differently from all
other religious minorities.
20 NABABAN V. GARLAND
Dr. Winters’s 25-page affidavit, for example, focused
almost exclusively on “[c]ountry conditions for religious
minorities” in Indonesia, and never attempted to explain why
“evangelical Christians” are subject to a different risk of
persecution than Christians in general, or even religious
minorities in general. He began his affidavit by summarily
concluding that Petitioners face “increasing persecution”
because of their “status as evangelical Christians,” but then
proceeded to discuss religious minorities for the next
eighteen pages of his affidavit without another single
reference to evangelical Christians until his conclusion at the
end of the affidavit.
In the eighteen pages of his analysis, Dr. Winters
summarized surveys that indicated a growing support of
Islamic law, a 2013 Human Rights Watch report that
evaluated “[a]buses [a]gainst [r]eligious [m]inorities,” the
“growing trend of religious intolerance,” and attacks
“against religious minorities such as the Ahmadis, Shia,
Christians, and Bahai.” Notably, many of the incidents that
Dr. Winters recounts in his report occurred around or before
the time of Petitioners’ first motion to reopen, making them
irrelevant to Petitioners’ required showing of materially
“changed country conditions.” Dr. Winters also discussed
the Indonesian government’s treatment of religious
minorities, the general awareness that “attacks on Ahmadis,
Shiites and other minority groups will continue,” and 2013
and 2014 U.S. State Department reports that found that
conditions were deteriorating for “religious minorities” in
Indonesia. None of these reports specifically focused on
Christians in general, much less “evangelical Christians.”
Dr. Winters also summarized several Indonesian news
articles that, again, focused on “intolerance against religious
minorities.” Dr. Winters then briefly described a visit to
NABABAN V. GARLAND 21
Indonesia where he met with the U.S. Ambassador to discuss
political Islam in Indonesia and “the serious threats these
trends posed for the country’s stability, and especially for
vulnerable religious minorities.” His affidavit makes no
reference to any of these discussions pertaining specifically
to the harm that Christians, much less “evangelical
Christians,” face in Indonesia.
After summarizing various country and media reports
that only focused on religious minorities, Dr. Winters
asserted that the “deterioration in conditions has a strong and
negative impact on Indonesia’s non-Islamic citizens, but
especially the Christian minority.” Then, at the very end of
his affidavit, Dr. Winters stated that the danger Petitioners
faced “as evangelical Christians is vastly higher now,” and
that “religious intolerance in Indonesia is especially harsh
against Christians who engage in proselytizing and
converting fellow citizens—which is a central tenet and
commitment of those of the evangelical faith.”
Dr. Winters’s treatment of “evangelical Christians” brings to
mind Wendy’s “Where’s the Beef?” commercials: it’s all
“fluffy bun” and no burger. Other than his bare assertions at
the beginning and end of his affidavit, there’s simply nothing
there when it comes to evidence or analysis of targeted
persecution of “evangelical Christians” in Indonesia. 3
The only thing Dr. Winters’s treatment of “evangelical
Christians” in his affidavit demonstrates is that he doesn’t
really consider them to be situated differently from any other
3
Like Dr. Winters, Professor Cammack’s affidavit similarly
mentioned “evangelical Christians” in the first paragraph, but then
focused on violations of religious freedom and harassment of Christians
in general, without mention or citation to sources that treated evangelical
Christians as a separate persecuted group in Indonesia.
22 NABABAN V. GARLAND
“religious minority” in Indonesia—including, Christians
generally. His affidavit also illustrates what the majority’s
decision in this case studiously ignores: that “evangelical
Christians” and “Christians who engage in proselytizing” are
the same thing. 4 This is important because, as discussed
below, the majority faults the BIA for somehow not having
considered Petitioners’ “identity as evangelical Christians,”
despite the fact that the BIA clearly considered that they are
“active members of the Seventh Day Adventist (SDA)
Church, a tenet of which is to spread the Gospel.” (emphasis
added).
The BIA evaluated Petitioners’ arguments, expert
affidavits, and supporting evidence, and denied their second
motion to reopen. In its decision, it expressly acknowledged
that Petitioners “have offered evidence that they are active
members of the Seventh Day Adventist (SDA) Church, a
tenet of which is to spread the Gospel.” Pursuant to both the
common understanding and literal definition of the word
“evangelize,” which means “preach[ing] the gospel,” the
BIA therefore explicitly addressed the evangelical
requirements of Petitioners’ SDA denomination. 5
4
The same is true for Professor Cammack, who described the
Petitioners as “evangelical Christians who seek to convert others to
Christianity in accordance with the tenets of their faith.” (emphasis
added).
5
The Merriam-Webster Dictionary defines “evangelize” as the act
of “preach[ing] the gospel.” Evangelize, MERRIAM-
WEBSTERDICTIONARY.COM, https://www.merriam-webster.com/dictionar
y/evangelize (last visited June 18, 2021). It further defines “preach” as
the act of “set[ting] forth in a sermon,” “advocat[ing] earnestly,” or
“deliver[ing] (something, such as a sermon) publicly.” Preach,
MERRIAM-WEBSTERDICTIONARY.COM, https://www.merriam-webster.
com/dictionary/preach (last visited June 18, 2021).
NABABAN V. GARLAND 23
But the BIA didn’t stop there. It then considered the
particular facts of Petitioners’ situation, noting that
“Nababan[] has recently been elected to be an Elder of the
respondents’ congregation; and [Silalahi] is now a deaconess
of their congregation.” “Given their status as church
leaders, and current conditions in Indonesia,” the BIA
continued, Petitioners “fear that Muslim radicals in
Indonesia will attack them, or the Indonesian Government
will arrest them for blasphemy.” (emphasis added). It also
cited to the portions of Petitioners’ brief where Petitioners
discussed their fear of returning to Indonesia because of their
evangelical activities. In recognizing Petitioners’ leadership
roles in the evangelical SDA denomination, the BIA
implicitly reinforced what it earlier explicitly recognized:
that Petitioners would be involved in evangelizing.
The BIA then proceeded with its analysis, where it noted
that Protestantism—a subset of Christianity which
encompasses the SDA church 6—“received official
recognition” in Indonesia since Petitioners’ last removal
hearing in 2009. The BIA also considered “the evidence of
attacks against Christian churches, including an SDA
church, as well as evidence of the difficulties and obstacles
faced by Christian congregations in general” (emphasis
added). By considering the “SDA church” independently
from “Christian congregations in general,” the BIA again
demonstrated that it did, in fact, assess Petitioners’ alleged
individualized risk as Christians who evangelize.
The BIA also evaluated a country report, evidence of
demonstrations against the construction of an SDA church,
6
Seventh-day Adventists, BBC, https://www.bbc.co.uk/religion/
religions/christianity/subdivisions/seventhdayadventist_1.shtml (last
visited Aug. 16, 2021).
24 NABABAN V. GARLAND
and numerous news articles provided by Petitioners and their
experts. To the extent that these sources discussed specific
anti-Christian sentiment at all, like Petitioners’ experts they
discussed harassment against Christians in general or SDA
churches—none specifically referenced the plight of
“evangelical Christians” per se. The BIA further
acknowledged “statements prepared specifically for this
motion by Jeffrey A. Winters, Ph.D., and Mark E. Cammack,
J.D. . . . [and] a statement from [Silalahi]’s father, also a
member of the SDA Church in Indonesia, who states that he
was beaten by Muslims in 2017 for providing a Bible and
religious instruction to a Muslim.” (citations omitted). This
was more evidence of evangelistic activities that the BIA
considered.
The BIA ultimately concluded, however, that
Petitioners’ new leadership roles in the SDA denomination
reflected a change in personal circumstances instead of
materially changed conditions in Indonesia, and that the
“evidence now before [it] . . . does not reflect materially
changed conditions affecting [Petitioners]’ ‘individualized
risk’ of persecution to warrant reopening.” Since the BIA
explicitly acknowledged and evaluated: (1) the SDA
church’s evangelical nature; (2) Petitioners’ leadership roles
in that church; (3) the documentary evidence pertaining to
attacks against an SDA church, the experts’ statements
“prepared specifically for this motion,” and blasphemy
charges against a popular Indonesian politician, and (4) the
portions of Petitioners’ brief specifically discussing the harm
Petitioners feared due to their evangelical activities, the
BIA’s reference to Petitioners’ “individualized risk” clearly
considered Petitioners’ claimed status as Christians who
evangelized. Upon consideration of this evidence, the BIA
determined that Petitioners did not meet their heavy burden
NABABAN V. GARLAND 25
required for reopening and denied their second motion to
reopen.
II.
Notwithstanding the BIA’s thorough consideration over
more than a decade of Petitioners’ status as Christians who
evangelize, the majority now remands due to the BIA’s
purported failure to explicitly assess Petitioners’ risk as
“evangelical Christians.” As explained, nobody—not
Petitioners, not their experts, and none of the articles they
provided—provided a stitch of evidence in support of
Petitioners’ motion to reopen evincing that “evangelical
Christians” as a separate group are exposed to a higher risk
of persecution in Indonesia than Christians in general, or
even religious minorities generally. Our court once again
faults the BIA for not addressing something that was never
actually presented to the BIA to address. 7
7
The majority disagrees, emphasizing that “Petitioners moved to
reopen principally on the basis that they faced a unique risk of
persecution as evangelical Christians,” and so their “unique” status as
“evangelical Christians” was “clearly presented to the BIA.” I’m not
talking about mere semantics. As this dissent explains at length, I agree
that Petitioners and their experts sometimes referred to themselves as
“evangelical Christians” in their most recent motion to reopen
documents (while also sometimes referring to themselves merely as
“Christians” or “religious minorities”). But I strongly disagree that they
did anything more than that—that is, Petitioners and their experts never
explained why their newly claimed label of evangelical Christians was
any different than their prior emphasis on themselves as simply
Christians . . . who evangelize. Indeed, their interchangeable reference
to themselves as Christians and evangelical Christians, as well as their
experts’ total lack of a showing that evangelical Christians are treated
differently than Christians generally, actually undercuts that there is any
substance to their semantic shift. That is the “something that was never
26 NABABAN V. GARLAND
Notably, the majority does not contend that the record
compels a conclusion contrary to the BIA’s with respect to
Petitioners’ status as Christians. Instead, in support of its
conclusion, the majority notes a few instances where the BIA
discussed “Christians in Indonesia” without reference to the
specific word “evangelical.” But in doing so, the majority
entirely ignores that the BIA simply used the same label for
Petitioners that they themselves and their experts repeatedly
used. And in elevating its own semantics over how the
parties used a term, the majority permits itself to gloss over
the merits of the BIA’s actual analysis—including its
acknowledgement and assessment of the risk associated with
Petitioners’ evangelical SDA denomination. And as
revealed by the Petitioners’ arguments throughout the last
decade (as well as their own experts’ affidavits),
“evangelical Christians” and Christians who “spread the
Gospel” is a distinction without a difference, particularly on
this record. The majority’s stingy focus on the BIA’s
omission of the word “evangelical” (while ignoring
Petitioners’ identical treatment) misconstrues the BIA’s
actual analysis and determination, which clearly took into
consideration Petitioners’ risks as Christians who
evangelize.
The majority’s emphasis on the term “evangelical
Christian” is not just absurdly fussy, it’s also inherently
fuzzy. The majority latches onto the term, but never defines
what it means. Does the majority mean that “evangelical
Christians” are a subgroup of Christianity, akin to the
commonly used distinction between, say, Catholics and
Protestants? Or does the majority simply mean that
“evangelical Christians” refers to any “Christians” who
actually presented to the BIA,” but on which the majority hangs its hat
on in granting the petition.
NABABAN V. GARLAND 27
evangelize? If the latter, this broad categorization
encompasses the vast majority, if not all, Christians, which
would explain why Petitioners’ own experts and record
materials treat “evangelical Christians” and “Christians”
interchangeably. 8 But if the former, what exactly sets this
ill-defined subset of “evangelical Christians” apart from
Christians generally, particularly with respect to their risk of
persecution in Indonesia? Petitioners and their experts
certainly provided nothing about that to the BIA in this case.
The majority’s emphasis on “evangelical Christians,”
without any explanation as to what it means, leaves the
agency and future petitioners at a loss when attempting to
ascertain the appropriate analysis for the risk of persecution
to “evangelical Christians.” All anyone knows is that a
future petitioner really should call himself an “evangelical
Christian” going forward, because that has magic power
before our court. 9
8
See Matthew 28:18–20; see also Francis X. Rocca, Yelin Hong,
and Josh Ulick, How the Catholic Word Is Changing, WALL STREET
JOURNAL, http://graphics.wsj.com/catholics-world/ (last visited Aug. 16,
2021) (“Despite the church’s focus on charitable work rather than
winning converts . . . conversions are an important byproduct of Catholic
social service projects in Africa.”); Paul Senz, “All Christians are called
to evangelism”, THE CATHOLIC WORD REPORT (Nov. 16, 2019),
https://www.catholicworldreport.com/2019/11/16/all-christians-are-call
ed-to-evangelism/.
9
The majority’s response to my criticism in this respect validates
my point. In the same footnote it conflates “an ‘evangelical Christian,
for whom public proselytizing is a religious obligation,’” with being
“members of a well-known evangelical church.” The term “evangelical
church,” as it is commonly used, is different than Christians who
proselytize (which, as I’ve explained, would include many, if not most,
Christians). Even the majority isn’t really sure what activities or unique
status its new magic word encompasses, which is not terribly surprising
28 NABABAN V. GARLAND
The majority also relies on Dr. Winters’s affidavit as
evidence that “evangelical Christians” face a risk of harm
separate from Indonesian Christians generally. But an
expert affidavit that sandwiches the meat of its analysis
(which, as discussed, was focused solely on religious
minorities, not “evangelical Christians”) between wholly
conclusory references to “evangelical Christians” isn’t
evidence. It’s naked semantic legerdemain, which the BIA
easily recognized as such, but apparently our court can’t.
Dr. Winters fails to cite any support showing that
“evangelical Christians” are treated differently than other
religious minorities in Indonesia.
The majority’s reliance on Dr. Winters’s affidavit also
runs afoul of numerous courts that have determined that
Dr. Winters’s assertions could not overcome the BIA’s
broad discretion in denying Petitioners’ requested relief,
especially given the BIA’s reliance on other parts of the
record that did not support Dr. Winters’s conclusion—just
as the BIA did here. 10 Indeed, at least one of our sister
since the record in this case is of no help in that regard. The majority
just knows it has mystical power, which the BIA should divine on
remand.
10
See Sugiarto v. Holder, 761 F.3d 102, 104 (1st Cir. 2014) (“[A]s
with a very similar affidavit from Dr. Winters discussed in Marsadu . . . ,
the Board did not abuse its discretion in finding that the Winters
Affidavit showed only . . . a mere continuation of prior conditions . . . .”
(citation and internal quotation marks omitted)); Marsadu, 748 F.3d
at 59 (“That Dr. Winters’s report did not deliver a decision in their favor
. . . does not entail a sufficient affront to the broad discretion we afford
the BIA on motions to reopen.”); Lie v. Holder, 729 F.3d 28, 31 (1st Cir.
2013) (“We find it notable . . . that the Third Circuit has denied petitions
for review in at least two cases where this same expert was used to
establish the existence of persecution of Christian and ethnic-Chinese
Indonesians.”); Tan v. Att’y Gen. U.S., 568 F. App’x 96, 99–100 (3rd
NABABAN V. GARLAND 29
circuits has declined to reevaluate the weight the BIA gave
to Dr. Winters’s affidavit, noting that “a challenge to how
the BIA weighed the evidence . . . is unavailing.” Marsadu
v. Holder, 748 F.3d 55, 59 (1st Cir. 2014).
The majority ignores all this, instead selectively quoting
one phrase from the beginning of Dr. Winters’s affidavit. To
the extent that Dr. Winters’s discussion of religious
minorities in general could be interpreted as necessarily
extending to evangelical Christians—which would be the
only explanation for relying on Dr. Winters’s otherwise
unsupported statement quoted by the majority—well, then,
we’re back at square one. If evangelical Christians are
persecuted like any other religious minorities, then the
majority has no basis to draw some ephemeral distinction
between Christians and evangelical Christians as its sole
justification for remanding to the BIA. The majority
attempts to distinguish evangelical Christians as some sort
of separate, undefined sub-group of Christianity based on an
expert affidavit that spends 18 pages demolishing that
distinction.
The majority’s misplaced reliance on Dr. Winters’s
affidavit highlights a bigger problem in this court—which is
overturning a BIA decision on an abuse of discretion
standard based on an expert report that does not actually
demonstrate what the majority asserts. See, e.g., Bautista v.
Barr, 822 F. App’x 535, 537 (9th Cir. 2020) (VanDyke, J.,
dissenting in part and concurring in part). Simply citing an
Cir. 2014) (per curiam); Soetiono v. Att’y Gen. U.S., 431 F. App’x 150,
155–56 (3rd Cir. 2011) (per curiam); Tanzil v. Att’y Gen. of U.S., 426 F.
App’x 104, 108 (3rd Cir. 2011) (per curiam) (“Dr. Winters’s testimony
criticizes piecemeal reform efforts and predicts future violence, but is
similarly inconclusive.” (citation and internal quotation marks omitted)).
30 NABABAN V. GARLAND
expert affidavit for its purported imprimatur—and then
selectively quoting from that affidavit while ignoring its
actual content—cannot be a legitimate basis for
circumventing our highly deferential abuse-of-discretion
review. Like chewing your fingernails, contorting the
arguments and reweighing the evidence that were actually
before the BIA in order to reach a desired outcome—
especially when operating under a highly deferential
standard of review—is a “nasty habit” that judges on our
court should at least try to kick. See Sanchez Rosales v. Barr,
980 F.3d 716, 721 (9th Cir. 2020) (VanDyke, J., dubitante).
But not today, apparently. The majority clings to a
myopic focus on the phrase “evangelical Christians,” which
the record reveals is at most mere semantics and a
misrepresentation of the BIA’s decision. Simply because the
BIA did not ritualistically chant the precise phrase
“evangelical Christians” in its decision cannot be a reason to
ignore that the BIA appropriately considered the particular
risk that Petitioners might face as Christians who evangelize.
Once we strip away the majority’s magic-word
requirement, we’re left with the question of whether
Petitioners have shown enough of a change in country
conditions to surmount the high bar for reopening. The law
is highly deferential in this area: not only do “[w]e review
denials of motions to reopen for abuse of discretion,”
Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010), but
our court has layered this standard on top of substantial
evidence review. See id. at 991 (“[S]ubstantial evidence
supports the Board’s finding that the evidence [the
petitioner] submitted in her motion to reopen was not
qualitatively different from the evidence presented at the
original hearing.”). The BIA addressed this exact question,
in such a way that not even the majority can pretend is wrong
NABABAN V. GARLAND 31
without inventing some undefined group the BIA
supposedly failed to consider. 11
For all these reasons, I would hold that the BIA showed
“proper consideration of all factors,” Bhasin v. Gonzales,
423 F.3d 977, 983 (9th Cir. 2005), and did not abuse its
11
Contrast the BIA’s determination in this case with the two out-of-
circuit cases the majority also relies on in support of its conclusion. In
Sihotang v. Sessions, the First Circuit remanded to the BIA while noting
that “the BIA never even mentioned terms remotely resembling
‘evangelical’ or ‘proselytize’ in its opinion.” 900 F.3d 46, 51 (1st Cir.
2018). The BIA also “appear[ed] to have completely overlooked critical
evidence.” Id. As discussed above, the BIA’s opinion here both
explicitly mentioned terms that are synonyms for “evangelical” and
“proselytize,” and it considered evidence directly pertaining to
Petitioners’ evangelical denomination. And in Liem v. Attorney General
United States, the Third Circuit viewed “evangelical Christians” and
those who “practice [their faith] publicly” to be the same, much like the
BIA did here. 921 F.3d 388, 400 (3rd Cir. 2019). Specifically, the court
granted the petition for review due to the BIA’s complete failure to
address various exhibits pertaining to the alleged persecution of—not
“evangelical Christians”—but Christians in general. Id. at 396–400.
Then in dicta, it also observed that “the [First Circuit]’s ruling in
Sihotang rested in large measure on the changed country conditions in
Indonesia for all Christians.” Id. at 400. And in even more dicta, it
opined that “to the extent [Sihotang]’s ruling rested on the distinction
between those who practice their faith privately and those who practice
publicly, there is evidence here that [the petitioner]’s faith may involve
a similarly public component” which “might be uniquely problematic for
[the petitioner].” Id. (citation and internal quotation marks omitted).
This “public component,” however, consisted of the petitioner’s
“tak[ing] care of [] church services” as a church deacon and “meet[ing]
the needs of the people in the community.” Id. Apart from the fact that
this conclusion is neither binding nor determinative, I’m not aware of
any Christian denomination that does not consider those “public
components” to be important aspects of the Christian religion in general.
32 NABABAN V. GARLAND
considerable discretion in denying Petitioners’ second
motion to reopen.