[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JANUARY 7, 2010
No. 09-10820 JOHN P. LEY
Non-Argument Calendar ACTING CLERK
________________________
Agency No. A079-408-072
BIN CHEN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(January 7, 2010)
Before EDMONDSON, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Bin Chen, a native and citizen of China, petitions for review of the order by
the Board of Immigration Appeals (“BIA”) denying his motion to reopen his
removal proceedings. No reversible error has been shown; we deny the petition.
We review the denial of a motion to reopen for an abuse of discretion. Jiang
v. U.S. Attorney Gen., 568 F.3d 1252, 1256 (11th Cir. 2009). The BIA has
discretion to reopen proceedings “as it sees fit.” Anin v. Reno, 188 F.3d 1273,
1279 (11th Cir. 1999); see also 8 C.F.R. § 1003.2(a) (“The [BIA] has discretion to
deny a motion to reopen even if the party moving has made out a prima facie case
for relief.”). Our review is limited to determining whether the BIA exercised its
discretion in an arbitrary or capricious manner. Jiang, 568 F.3d at 1256. “Motions
to reopen in removal proceedings are particularly disfavored.” Id.
A party may file only one motion to reopen which “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 U.S.C. § 1229a(c)(7)(A),
(B). A motion to reopen must be filed no later than 90 days after the final
administrative decision. 8 C.F.R. § 1003.2(c)(2). But this time limit does not
apply if the motion to reopen is based on changed circumstances in the country of
the movant’s nationality. Id. § 1003.2(c)(3)(ii). To meet this exception, a movant
must offer material evidence that “was not available and could not have been
discovered or presented at the previous hearing.” Id.
2
Chen sought to reopen his removal proceedings and file a successive asylum
application based on his membership in the Chinese Democracy Party (“CDP”).1
Chen alleged that -- after the IJ ordered him removed -- he joined the CDP while in
the United States and that he had been an active member of the CDP, participating
in rallies and publishing articles critical of the Chinese government on a CDP
website. In his motion, he submitted several articles and U.S. State Department
Country Reports on Human Rights Practices in China; and he contended that these
documents demonstrated changed country conditions in how the Chinese
government treated dissidents who expressed their political opinions over the
internet. Chen maintained that he feared persecution if he returned to China
because of his activities with the CDP.
The BIA denied the motion to reopen, concluding that the motion was
untimely and that Chen’s decision to join the CDP represented a change in
personal circumstances, not a change in country conditions. And even still, the
BIA reasoned, the evidence Chen presented did not sufficiently show a change in
country conditions since his October 2004 asylum hearing.
On appeal, Chen argues that the BIA did not evaluate appropriately his
submitted evidence and that he did demonstrate changed country conditions. We
1
Chen originally sought relief from removal because he was a practitioner of Falun Gong.
3
disagree. Chen’s submitted evidence -- all of which the BIA considered -- showed
that both before and after Chen was denied asylum, the Chinese government
monitored, detained, arrested, and imprisoned members of the CDP who used the
internet to publish articles criticizing the government.2 The articles and country
reports about treatment of CDP members from after his asylum denial did not
reflect a material change in the treatment of CDP members. Nothing evidenced
that the Chinese government was more stringently punishing CDP members. See
Jiang, 568 F.3d at 1258 (changed country conditions may arise when a government
begins “more stringently” to enforce preexisting laws in a country). Therefore, we
do not conclude that the BIA’s denial of Chen’s motion was an abuse of
discretion.3
Because Chen’s motion to reopen was not timely, and he did not present
evidence establishing changed conditions in China, the BIA’s denial of his motion
was not arbitrary or capricious, or otherwise an abuse of discretion.
PETITION DENIED.
2
Three of the articles Chen submitted about the treatment of CDP members predated his
October 2004 denial of removal relief.
3
Because Chen’s submitted documents did not evidence a change in China’s conditions,
we need not address his claim that his evidence demonstrated a prima facie case for relief from
removal.
4