Case: 10-60557 Document: 00511455235 Page: 1 Date Filed: 04/25/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 25, 2011
No. 10-60557
Summary Calendar Lyle W. Cayce
Clerk
YUAN QING YU,
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A-078-125-633
Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Yuan Qing Yu petitions this court for review of the Board of Immigration
Appeals (BIA) order denying his motion to reopen removal proceedings. He
argues that the BIA abused its discretion by ruling that he had not established
changed country conditions sufficient to warrant consideration of his untimely
and numerically barred motion to reopen under 8 C.F.R. § 1003.2(c).
Yu was ordered to be removed from the United States in February 2000,
after he failed to attend a removal hearing. In this, his fourth motion to reopen,
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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No. 10-60557
Yu alleges that in May 2009, he joined the Federation for a Democratic China
(FDC), an organization that opposed the Chinese Communist Party and
promoted democracy in China. Yu acknowledges that his motion to reopen was
untimely and numerically barred; however, he argues that his motion fell under
an exception to these limitations because it was based on changed country
conditions in China, namely the passage of a law criminalizing the use of the
internet to communicate anti-government messages. He also asserts that there
has been an increase in persecution of political dissidents in China, including
returning citizens who had engaged in pro-democracy activities abroad. He
contends that he engaged in several FDC activities and that Chinese authorities
were aware of his involvement in the FDC and have expressed a desire to arrest
him.
We review the BIA’s denial of a motion to reopen “under a highly
deferential abuse-of-discretion standard.” Zhao v. Gonzales, 404 F.3d 295, 303-
04 (5th Cir. 2005). “Motions to reopen removal proceedings are disfavored, and
the moving party bears a heavy burden.” Altamirano-Lopez v. Gonzales, 435
F.3d 547, 549 (5th Cir. 2006). We will affirm the BIA’s decision “so long as it is
not capricious, racially invidious, utterly without foundation in the evidence, or
otherwise so irrational that it is arbitrary rather than the result of any
perceptible rational approach.” Zhao, 404 F.3d at 301 (5th Cir. 2005) (internal
quotations marks and citation omitted).
In order to overcome the time and numerical limitations on his motion to
reopen, Yu was required to show changed country conditions in China. See
§ 1003.2(c)(2), (3). In determining whether evidence accompanying a motion to
reopen demonstrates a material change in country conditions that would justify
reopening, the BIA compares the “evidence of country conditions submitted with
the motion to those that existed at the time of the merits hearing below.” In re
S-Y-G, 24 I. & N. Dec. 247, 253 (BIA 2007). The evidence of a change in country
conditions must be “material” and it must have been unavailable in the original
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No. 10-60557
proceeding. 8 U.S.C. § 1229a(c)(7)(C)(ii). Self-induced changes in an alien’s
personal circumstances are distinguishable from changed country conditions.
See, e.g., Huang v. Holder, 358 F. App’x 587, 588 (5th Cir. 2009). In addition to
showing changed country conditions, the alien must show prima facie eligibility
for the relief that he seeks. See INS v. Abudu, 485 U.S. 94, 104 (1988).
The BIA determined that the new law did not reflect any new prohibition
on pro-democracy activity, but rather was an effort to address a new method of
transmitting already-barred material. Yu has not shown this determination to
be without foundation, or otherwise an abuse of discretion. Zhao, 404 F.3d at
301.
Further, the BIA’s order clearly reflects a consideration of Yu’s supporting
documentation, including the news articles recounting instances in which
Chinese political dissidents were arrested on their return to China. As noted by
the BIA, in the absence of specifics about the facts of these cases, Yu has not
shown that these instances are relevant to his claims. Further, the articles
provide no explanation as to how China’s treatment of citizens who engaged in
pro-democracy activities abroad have changed between February 2000 and
November 2009.
In sum, Yu has not met the “heavy burden” of demonstrating that the BIA
abused its discretion in denying his motion to reopen. See Altamirano-Lopez,
435 F.3d at 549. Accordingly, we do not reach his arguments that he established
prima facie eligibility for asylum, withholding of removal, and protection under
the CAT. See Yu Chun Lian v. Mukasey, 294 F. App’x 163, 164 (5th Cir. 2008)
(citing INS v. Orlando Ventura, 537 U.S. 12, 16-17 (2002)).
PETITION DENIED.
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