[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-12189 JAN 04, 2011
JOHN LEY
Non-Argument Calendar CLERK
________________________
Agency No. A098-560-092
FENG GUI ZHENG,
lllllllllllllllllllll Petitioner,
versus
U.S. ATTORNEY GENERAL,
lllllllllllllllllllll Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(January 4, 2011)
Before HULL, WILSON and MARTIN, Circuit Judges.
PER CURIAM:
Feng Gui Zheng, a native and citizen of China, petitions for review of the
Board of Immigration Appeals’s (“BIA”) decision denying her motion for
reconsideration and her second motion to reopen, filed pursuant to 8 C.F.R. §
1003.2(b) and (c); Immigration and Nationality Act (“INA”) § 240(c)(6) and (7), 8
U.S.C. § 1229a(c)(6) and (7). Zheng originally applied for asylum based on
political opinion, but her application was denied, and the BIA dismissed her
appeal. She then moved the BIA to reopen proceedings based on her adoption of
Falun Gong. On October 14, 2009, the BIA denied this motion, concluding Zheng
failed to establish changed country conditions and, thus, her filing was untimely.
She did not petition this Court to review that decision.
Zheng did, however, move the BIA to reconsider its decision and to reopen
proceedings. She relied primarily on articles about China targeting Falun Gong
practitioners abroad and a notice her parents received from Chinese authorities
reporting Zheng’s activities within the United States and demanding that Zheng
stop practicing Falun Gong and return to China to accept punishment. The BIA
denied the motions, and Zheng timely petitioned this Court for review.
Zheng contends that the BIA erroneously denied her motion for
reconsideration because she had shown an error of fact or law in its previous
conclusion that she failed to establish changed country conditions to excuse the
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untimeliness of her first motion to reopen. With respect to her second motion to
reopen, Zheng argues that she submitted evidence to the BIA that sufficiently
established changed country conditions and that the motion was, therefore, exempt
from the timely filing requirements.
“‘We review the BIA’s denial of a motion to reconsider for abuse of
discretion.’” Calle v. U.S. Att’y Gen., 504 F.3d 1324, 1328 (11th Cir. 2007)
(quoting Assa’ad v. U.S. Att’y Gen., 332 F.3d 1321, 1341 (11th Cir. 2003)). We
also review the BIA’s denial of a motion to reopen for abuse of discretion. Jiang
v. U.S. Att’y Gen., 568 F.3d 1252, 1256 (11th Cir. 2009). Thus, our review is
limited to determining whether the BIA’s exercise of discretion was arbitrary or
capricious. Id.
“A motion to reconsider shall state the reasons for the motion by specifying
the errors of fact or law in the prior [BIA] decision and shall be supported by
pertinent authority.” 8 C.F.R. § 1003.2(b)(1); see also INA § 240(c)(6)(C),
8 U.S.C. § 1229a(c)(6)(C). “[M]erely reiterating arguments previously presented
to the BIA does not constitute ‘specifying . . . errors of fact or law’ as required for
a successful motion to reconsider.” Calle, 504 F.3d at 1329 (quoting 8 C.F.R.
§ 1003.2(b)(1)).
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“A motion to reopen proceedings shall state the new facts that will be
proven at a hearing to be held if the motion is granted and shall be supported by
affidavits or other evidentiary material.” 8 C.F.R. § 1003.2(c)(1); see also INA
§ 240(c)(7)(B), 8 U.S.C. § 1229a(c)(7)(B). A motion to reopen “must be filed no
later than 90 days after the date on which the final administrative decision was
rendered in the proceeding sought to be reopened . . . .” 8 C.F.R. § 1003.2(c)(2);
see also INA § 240(c)(7)(C)(i), 8 U.S.C. § 1229a(c)(7)(C)(i). However, the 90-
day time limitation does not apply to a motion to reopen based upon “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.”
8 C.F.R. § 1003.2(c)(3)(ii); see also INA § 240(c)(7)(C)(ii), 8 U.S.C.
§ 1229a(c)(7)(C)(ii).
As an initial matter, we lack jurisdiction to review the BIA’s October 14,
2009 decision denying Zheng’s first motion to reopen because she did not petition
for review within 30 days of the entry of that order. See INA § 242(b)(1), 8 U.S.C.
§ 1252(b)(1); Dakane v. U.S. Att’y Gen., 399 F.3d 1269, 1272 n.3 (11th Cir. 2005)
(per curiam) (explaining that the period for filing a petition for review is
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mandatory and jurisdictional). Accordingly, Zheng’s petition is dismissed to the
extent she challenges the BIA’s October 14, 2009 decision.
In support of her motion for reconsideration, Zheng relied on the same
arguments that she presented in support of her first motion to reopen—the
underlying motion to be reconsidered. Because merely reiterating the same
arguments previously presented to the BIA does not specify an error of fact or law,
the BIA did not abuse its discretion in denying Zheng’s motion for
reconsideration. See Calle, 504 F.3d at 1329.
Likewise, the BIA did not abuse its discretion in denying Zheng’s second
motion to reopen. The evidence she presented, though suggesting changes in
Chinese policy abroad, did not represent a material change in conditions within
China. See 8 C.F.R. § 1003.2(c)(3)(ii) (stating an exemption to the 90-day time
limitation where the movant presents evidence of “changed circumstances arising
in the country of nationality or in the country to which deportation has been
ordered . . . .”) (emphasis added). Instead, this evidence merely illustrates a
continuation of China’s more than decade-long crackdown on Falun Gong.
Consequently, the BIA did not abuse its discretion in finding Zheng failed to
present material evidence of changed country conditions and in denying the
motion as untimely.
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Accordingly, Zheng’s petition is DISMISSED IN PART, DENIED IN
PART.
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