[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-13199 JAN 30 2008
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
Agency No. A77-309-283
GUANG ZHENG,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(January 30, 2008)
Before TJOFLAT, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
On May 9, 2006, we upheld the decision of the Board of Immigration
Appeals (“BIA”) affirming an Immigration Judge’s decision denying petitioner’s
application for asylum, withholding of removal under the Immigration and
Nationality Act, and protection under the U.N. Convention Against Torture.
Zheng v. U.S. Att’y Gen., 176 Fed.Appx. 1001 (11th Cir. 2006). On January 12,
2007, petitioner filed with the BIA a motion to reopen the proceedings, contending
that circumstances had changed since the Board’s May 9, 2006 decision had issued
and that, in light of the Second Circuit’s decision in Guo v. Gonzalez, 463 F.3d
109 (2d Cir. 2006), his motion was timely. The motion represented that he was
married on August 24, 2004, and had a daughter and a son born respectively on
April 15, 2005, and March 18, 2006, in the United States, and that because of
having a “second child within months of the birth of his daughter,” he had a well-
founded fear of being persecuted if returned to China.
On June 13, 2007, the BIA denied petitioner’s motion to reopen, finding the
motion untimely. Petitioner now seeks review of that decision, contending that the
BIA erred in (1) finding that the birth of his children in the United States did not
amount to a change in circumstances in China, and (2) failing properly to consider
Guo v. Gonzales, 463 F.3d 109 (2d Cir. 2006), as effectively constituting a finding
that China had changed its previous policy and that it now treats foreign born
children as Chinese nationals for family planning purposes. According to
2
petitioner, prior to Guo, there was no evidence that China would consider children
born outside of China for family planning purposes.1
A motion to reopen “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.” 8 C.F.R. § 1003.2(c)(2). The 90-day filing deadline does not apply to
an alien who files a motion to reopen predicated upon “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).2
Petitioner’s reliance on Guo is misplaced; that decision did not constitute a
finding that China had changed its policy as petitioner contends. In Guo, the court
of appeals considered only whether the claims in certain previously unavailable
documents were material to a well-founded fear of persecution, not whether the
documents established a well-founded fear of persecution or even had merit. Guo,
1
We review the BIA’s denial of a motion to reopen for abuse of discretion. Abdi v. U.S.
Att’y Gen., 430 F.3d 1148, 1149 (11th Cir. 2005). The 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.” Id. (internal quotation omitted).
2
A recent campaign of forced sterilization in the petitioner’s home village may satisfy
the changed circumstances exception. Li v. U.S. Att’y Gen., 488 F.3d 1371, 1375 (11th Cir.
2007).
3
463 F.3d at 115 (remanding the case to the BIA for further determination).3 In
short, petitioner’s reliance on Guo to have changed China’s policy is unfounded.
Finally, we are not persuaded that the BIA failed to consider the basis of
petitioner’s motion to reopen – his claim that he had a well-founded fear of
persecution based on the birth of his two children in the United States.
The BIA exercised its discretion in this matter and did so in a manner that
could not be considered arbitrary or capricious.
PETITION DENIED.
3
The documents referred to in Guo are distinct from the documents petitioner submitted
to the BIA in his motion to reopen.
4