[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JANUARY 12, 2010
No. 09-12172 JOHN P. LEY
Non-Argument Calendar ACTING CLERK
________________________
Agency No. A077-052-002
TENG FEI LIU,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(January 12, 2010)
Before TJOFLAT, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
Teng Fei Liu, a native and citizen of China, seeks review of the Board of
Immigration Appeals’s (“BIA”) denial of her motion to reopen her asylum
proceedings based on changed country conditions. Specifically, she contends that
she converted to Falun Gong in 2007, she is an active practitioner, and China has a
history of severe persecution of Falun Gong practitioners. In addition, Liu argues
that conditions in China have become worse since her prior hearing in 2001, and
she points to the evidence she submitted showing that the Chinese government
treated Falun Gong practitioners more harshly in advance of the 2008 Olympics.
She submits that the evidence also supports that this treatment has continued after
the Olympics.
The BIA’s denial of a motion to reopen is reviewed for abuse of discretion.
Ali v. U.S. Att’y Gen., 443 F.3d 804, 808 (11th Cir. 2006). “Our review is limited
to determining whether there has been an exercise of administrative discretion and
whether the matter of exercise has been arbitrary or capricious.” Montano
Cisneros v. U.S. Att’y Gen., 514 F.3d 1224, 1226 (11th Cir. 2008) (quotation
omitted).
An alien generally may file one motion to reopen proceedings, if filed within
ninety days of the date of entry of a final administrative order of removal. INA
§ 240(c)(7)(A), (C), 8 U.S.C. § 1229a(c)(7)(A), (C); 8 C.F.R. § 1003.2(c)(2), (3).
However, the time limit does not apply if the motion to reopen is based on changed
country conditions, “if such evidence is material and was not available and would
2
not have been discovered or presented at the previous proceeding.” INA
§ 240(c)(7)(C)(ii), 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). “An
alien who attempts to show that the evidence is material bears a heavy burden and
must present evidence that demonstrates that, if the proceedings were opened, the
new evidence would likely change the result in the case.” Jiang v. U.S. Att’y Gen.,
568 F.3d 1252, 1256-57 (11th Cir. 2009). In Jiang, we held that changed country
conditions supported granting a motion to reopen where China’s family planning
laws were enforced more stringently in the time period between the petitioner’s
removal hearing and the filing of the motion. Id. at 1258.
A change in personal circumstances does not authorize the untimely filing of
a motion to reopen. See 8 C.F.R. § 1003.23(b)(4)(i); Jiang, 568 F.3d at 1258.
However, we held in Zhang v. U.S. Att’y Gen., that when a motion to reopen is
based primarily on changed country conditions instead, the BIA may excuse an
untimely filing. 572 F.3d 1316, 1320 (11th Cir. 2009). In that case, the BIA
initially denied the petitioner’s application for asylum, withholding of removal,
and relief under the Convention Against Torture, and while the case was on appeal,
she gave birth to two children. Id. at 1317-18. The petitioner then filed a motion
to reopen, arguing that changed country conditions surrounding China’s “one-
child” policy meant that she might be forcibly sterilized upon her return to China.
Id. at 1318. We held that her motion was based on evidence of changed country
3
conditions rather than a change in personal circumstances. Id. at 1320.
Based on our review of the record and consideration of the parties’ briefs in
this case, we grant the petition for review. Although Liu’s personal circumstances
changed since the time of her first immigration court hearing with her adoption of
the practice of Falun Gong, her motion to reopen was based on the change in
China’s stepped-up enforcement of its prohibition against Falun Gong
practitioners. See id. She presented evidence of her adoption of Falun Gong to
demonstrate that the changed country conditions for Falun Gong practitioners in
China would apply to her. Thus, to the extent the BIA concluded that Liu did not
satisfy the requirement for a motion to re-open because she presented evidence of a
change in her personal circumstances, it abused its discretion.
The BIA also indicated that it was denying Liu’s motion to re-open because
it found that country conditions in China had not changed materially since her
original immigration court hearing in 2001. However, Liu presented evidence that
country conditions had worsened for Falun Gong practitioners before and after the
2008 Olympics. Notably, Liu presented one article that the Chinese government
was “using pre-Olympic ‘security measures’ to stifle dissenters in the long term,”
and another that noted that “a nationwide round-up that occurred in the months
preceding the Olympics [] has continued since the closing ceremonies as well.”
The BIA did not address this evidence in finding that the media reports in advance
4
of the 2008 Olympics did not “establish a sustained escalation in the detention of
Falun Gong practitioners or that the treatment of them while detained has
worsened.” Thus, the BIA’s determination that country conditions in China for
Falun Gong practitioners had not changed for the worse appears to be arbitrary and
not based on the evidence in this case. Montano Cisneros, 514 F.3d at 1226.
Accordingly, we find that the BIA abused its discretion in denying Liu’s motion to
re-open and remand her case to the BIA to allow her to apply for asylum and
withholding of removal. See Zhang, 572 F.3d at 1320 (granting a petition for
review of the BIA’s denial of a motion to reopen and directing the BIA to reopen
proceedings to consider the merits of the petitioner’s claims for asylum and
withholding of removal).
PETITION GRANTED.
5