[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
August 18, 2005
No. 05-10230 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A79-058-959
XIKANG ZOU,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(August 18, 2005)
Before CARNES, MARCUS and FAY, Circuit Judges.
PER CURIAM:
XiKang Zou, a Chinese national proceeding pro se, petitions for review of the
BIA’s order denying his motion to reopen his proceedings. On appeal he argues
that his marriage and wife’s pregnancy constituted changed circumstances requiring
that his proceedings be reopened and that his asylum claim is non-frivolous. For
the reasons stated more fully below, we deny Zou’s petition for review.
According to his notice to appear, Zou entered the United States at an
unknown place and time. He was charged with being present in the United States
without being admitted or paroled or arriving in the United States at a time or place
other than as designated by the Attorney General, INA § 212(a)(6)(A)(i), 8 U.S.C. §
1182(a)(6)(A)(i). Zou then filed an application for asylum and withholding of
removal signed July 20, 2001. In his application, Zou indicated that he had arrived
in the United States on June 13, 1999.
As to his asylum claim, Zou stated that he and his family were victims of
China’s family planning policies. Specifically, he claimed that his mother, while
pregnant with Zou, was forced to flee her home in order to avoid a forced abortion,
and the government retaliated by taking away home appliances, forcing his mother
to be sterilized, and levying a fine. Sometime in 1990, government officers
confronted his mother and Zou intervened, causing the officers to push him down,
breaking his arm. Later, in 1997, Zou again was confronted by government officers
over a fine, and eventually Zou left China in April 1999.
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Zou secured counsel and admitted the allegations in the notice to appear as
well as removability. Zou then testified that he was afraid to return to China
because he would be put in jail and beaten. He explained that his hand was broken
by the local village cadres after he pushed them while they were talking to his
mother. Zou fled his home and returned several years later, at which point the cadre
ordered him to pay a fine. Zou refused and eventually fled. He further testified that
his mother had been sterilized in 1981, but later admitted that it did not occur until
1986. Zou also admitted telling arresting officers in the United States that he
entered the country in 1995, contrary to his asylum application.
The IJ issued an oral decision, finding that Zou’s application for asylum was
time-barred and, in the alternative, found that Zou’s claims lacked credibility and
nothing that Zou had alleged happened to him rose to the level of persecution. It
further found that Zou could not meet the higher standard for withholding of
removal, did not qualify for relief under Article 3 of the United Nations Convention
Against Torture, and knowingly had filed a frivolous application. Zou was thus
ordered to be removed to China. Zou appealed the IJ’s decision to the BIA, which
affirmed on August 17, 2004. No petition for review was filed.
On November 16, 2004, Zou filed a pro se motion to reopen his proceedings
with the BIA. In it, he argued that he had a new development in his case because he
was now married and his wife was pregnant. He argued that he and his wife wanted
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to have three children, which would violate China’s family planning policies, giving
him a well-founded fear of persecution. Included with the motion were a marriage
certificate dated June 25, 2003, and a medical record.
On December 21, 2004, the BIA denied the motion to reopen, finding that the
motion had been filed out of time because 90 days had transpired from the BIA’s
final order and the date Zou’s motion had been received. It then construed Zou’s
statements regarding his asylum claim and China’s coercive population control
policies as falling within a regulatory exception for filing a motion to reopen based
on “changed circumstances,” but found that Zou had not established “changed
circumstances” in China and, therefore, denied the motion. Zou then filed a petition
for review of the BIA’s decision on January 14, 2005.
DISCUSSION:
Because Zou’s removal proceedings commenced after April 1, 1997, the
effective date of IIRIRA, this case is governed by the permanent provisions of the
INA, as amended by IIRIRA.1 Gonzalez-Oropeza v. U.S. Attorney Gen., 321 F.3d
1331, 1332 (11th Cir. 2003). We will review only the BIA’s decision, except to the
1
Pursuant to the REAL ID Act of 2005, this distinction appears to be irrelevant, as the
Act provides that all petitions for review “filed under former section 106(a) of the Immigration
and Nationality Act (as in effect before its repeal by section 306(b) of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1252 note)) shall be treated as if it
had been filed as a petition for review under section 242 of the Immigration and Nationality Act
(8 U.S.C. 1252).” See Pub. L. 109-13, 119 Stat 231 (May 11, 2005).
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extent that it expressly adopts the IJ’s opinion. Al Najjar v. Ashcroft, 257 F.3d
1262, 1284 (11th Cir. 2001) (citation omitted).
On appeal, Zou argues that his motion to reopen should have been granted
due to “changed circumstances.” He argues that he and his wife want to have three
children and that if he were returned to China, either he or his wife would be
subjected to forced sterilization. Thus, he argues that he has a well-founded fear of
persecution. He further argues that his asylum claim is non-frivolous and requests
that this Court grant him asylum.
As a preliminary matter, to the extent Zou argues that the BIA’s August 17,
2004, affirmance of the IJ’s order of removal was in error, we lack jurisdiction to
address the issue because a petition for review of that decision was not timely filed.
This Court has jurisdiction over a “final order of removal,” so long as the petition
for review is filed within 30 days. INA §§ 242(a)(1) and (b)(1), 8 U.S.C.
§§ 1252(a)(1) and (b)(1). Because Zou never filed a petition for review of the final
order of removal, this Court lacks jurisdiction to review it and, therefore, any
argument concerning the propriety of that order is dismissed.
“[We review] the BIA’s denial of [a petitioner’s] motion to reopen his
deportation order for abuse of discretion. In this particular area, the BIA’s
discretion is quite broad.” Gbaya v. United States Attorney General, 342 F.3d
1219, 1220 (11th Cir. 2003). Pursuant to 8 C.F.R. § 1003.2(a), “[t]he decision to
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grant or deny a motion to reopen or reconsider is within the discretion of the Board,
subject to the restrictions of this section. The Board has discretion to deny a motion
to reopen even if the party moving has made out a prima facie case for relief.” 8
C.F.R. § 1003.2(a). A motion to reopen must be filed with the BIA no later than 90
days after the date on which the final administrative decision was rendered. 8
C.F.R. § 1003.2(c)(2). However, the time limitations set forth in paragraph (c)(2)
do not apply to a motion to reopen proceedings, inter alia, to apply or reapply for
asylum or withholding of deportation “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.” 8 C.F.R. § 1003.2(c)(3)(ii).
We conclude that the BIA did not abuse its discretion by denying Zou’s
motion to reopen. First, as the BIA correctly found, Zou had 90 days from the
BIA’s August 17, 2004, order affirming the IJ’s order of removal in which to file
his motion to reopen. Thus, Zou had until November 15, 2004, to timely file his
motion. His motion, however, was not filed until November 16, 2004, and,
therefore, was untimely. 8 C.F.R. § 1003.2(c)(3). Furthermore, Zou failed to meet
the one enumerated exception to the time limitations that he arguably could have
qualified for because he did not demonstrate any changed circumstances arising out
of his country of nationality and to which deportation was ordered, China. The fact
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that he is now married and his wife is pregnant is not a change arising out of the
People’s Republic of China. Accordingly, the BIA did not abuse its discretion by
correctly applying the 90-day filing requirement and time limitation to deny Zou’s
motion. We, therefore, deny Zou’s petition for review.
PETITION DENIED.
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