Henri Nababan v. Merrick Garland

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.