Case: 13-60919 Document: 00512780519 Page: 1 Date Filed: 09/24/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-60919
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
September 24, 2014
XIU ZHU CHEN, also known as Xia Zhen Chen,
Lyle W. Cayce
Clerk
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. A096 108 959
Before SMITH, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM: *
Xiu Zhu Chen, a native and citizen of China, petitions for review of the
Board of Immigration Appeals’ denial of her 2012 motion to reopen her 2003
removal proceedings. Denial of such motions is reviewed under “a highly
deferential abuse-of-discretion standard”. Gomez-Palacios v. Holder, 560 F.3d
354, 358 (5th Cir. 2009). The BIA’s decision will be upheld “as long as it is not
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 13-60919
capricious, without foundation in the evidence, or otherwise so irrational that
it is arbitrary rather than the result of any perceptible rational approach”. Id.
A motion to reopen must be filed no later than 90 days after the date on
which the final administrative decision was rendered. 8 C.F.R. § 1003.2(c)(2)
(“[A] party may file only one motion to reopen deportation or exclusion
proceedings (whether before the Board or the Immigration Judge) and that
motion 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
. . .”.). This time bar does not apply, however, if the motion 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”. § 1003.2(c)(3)(ii).
In this instance, the BIA, as required, properly compared the evidence of
country conditions submitted with the motion to reopen with the evidence that
existed at the time of Chen’s 2003 merits hearing. E.g., Gotora v. Holder, No.
13-60165, 2014 WL 1779233, at *2 (5th Cir. 6 May 2014) (citation omitted).
The 2003 Department of State report on China, which was submitted during
Chen’s original proceedings, establishes that “government respect for religious
freedom remained poor” and provides details of government treatment of
various religious groups. Bureau of Democracy, Human Rights, and Labor,
2003 Country Reports on Human Rights Practices: China (Includes Tibet, Hong
Kong, and Macau) Department of State, (25 Feb. 2004), http://www.state.
gov/j/drl/rls/hrrpt/2003/27768.htm.
The more recent State Department reports on China submitted with the
motion to reopen support the BIA’s denial of Chen’s motion because they do
not establish a material change in country conditions since the time of Chen’s
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No. 13-60919
prior proceedings; rather, they confirm “continuing history of persecution”.
Iqbal v. Holder, 519 F. App’x 243, 244 (5th Cir. 2013).
Accordingly, Chen fails to demonstrate the BIA abused its discretion.
Gomez-Palacios, 560 F.3d at 358. (This court, therefore, need not examine her
claim that she is prima facie eligible for asylum, relief from removal, and
protection under the Convention Against Torture. Iqbal, 519 F. App’x at 244.)
DENIED.
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