Case: 11-60095 Document: 00511718158 Page: 1 Date Filed: 01/09/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 9, 2012
No. 11-60095
Summary Calendar Lyle W. Cayce
Clerk
ZHENGHAO LIU,
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. A097 367 597
Before WIENER, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Petitioner Zhenghao Liu, a native and citizen of the People’s Republic of
China, petitions us for review of a decision by the Board of Immigration Appeals
(BIA) denying his second motion to reopen as barred by the time and numerical
limitations of 8 U.S.C. § 1229a(c)(7)(C). He contends that the BIA abused its
discretion by denying his motion because the new evidence he submitted in
conjunction with his motion established a material change in country conditions
such that his motion was not subject to those time and numerical limitations.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-60095
He also contends that he has made a prima facie showing of his eligibility for
asylum.
We have jurisdiction to entertain Liu’s petition for review of the BIA’s
denial of his motion to reopen based on changed country conditions. Panjwani
v. Gonzales, 401 F.3d 626, 632 (5th Cir. 2005). The denial of a motion to reopen
is reviewed “under a highly deferential abuse of discretion standard.” Manzano-
Garcia v. Gonzales, 413 F.3d 462, 469 (5th Cir. 2005). “Such discretion is not to
be disturbed ‘so long as it is not capricious, racially invidious, utterly without
foundation in evidence, or otherwise so aberrational that it is arbitrary rather
than the result of any perceptible rational approach.’” Id. (quoting Pritchett v.
INS, 993 F.2d 80, 83 (5th Cir. 1993)).
Except in specific circumstances, there is a 90-day time limit for filing a
motion to reopen. 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2) & (3).
Additionally, a party generally may file only one motion to reopen. § 1229a(c)(7);
§ 1003.2(c)(2). An alien is not bound by the time and number limitations of
§ 1229a(c)(7)(C)(i), however, if the motion to reopen requests asylum or
withholding of removal “based on changed country conditions arising in the
country of nationality . . . if such evidence is material and was not available and
could not have been discovered or presented at the previous proceeding.”
§ 1003.23(b)(4)(i); see § 1229a(c)(7)(C)(ii); Panjwani, 401 F.3d at 631. In
determining whether there has been a material change in country conditions,
the BIA compares “the evidence of country conditions submitted with the motion
to those that existed at the time of the merits hearing below.” In re S-Y-G, 24
I. & N. Dec. 247, 253 (BIA 2007).
The evidence submitted by Liu supports the BIA’s determination that he
did not establish a material change in country conditions since the time of his
initial removal hearing. See In re S-Y-G, 24 I. & N. Dec. at 253. The State
Department’s 2004 report on China, which was submitted into evidence during
Liu’s original removal proceedings, indicated that the Chinese government’s
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No. 11-60095
respect for religious freedom was poor. The report indicated that religious
activities were monitored and that the government required all places of
religious activity to register. Although respect for religious freedoms varied
widely by province, activities at registered churches generally occurred without
interference. Religious services at unregistered or underground churches,
however, were often broken up and, in some instances, the location was
destroyed. The report noted that church leaders and worshipers at underground
churches were often harassed, detained, or beaten. The report further observed
that Chinese authorities were increasingly vigilant “against foreign infiltration
under the guise of religion.”
Liu’s evidence that his mother and brother were arrested and detained
after being caught worshiping at an underground house church is consistent
with the Chinese government’s historical restriction on religious freedoms and
does not represent changes in the country conditions since his initial removal
hearing. Similarly, his evidence that Chinese authorities sought to conduct an
inquiry into his unsanctioned religious activities is consistent with the
government’s historical restrictions on freedom of religion and wariness towards
foreign infiltration under the guise of religion. Therefore, the evidence Liu relies
on does not establish a material change in country conditions. See Panjwani,
401 F.3d at 631; In re S-Y-G, 24 I. & N. Dec. at 253.
As Liu failed to establish a material change in country conditions, his
motion to reopen was not excepted from the time and number limitations on
such motions. See § 1003.23(b)(4)(i); § 1229a(c)(7)(C); Panjwani, 401 F.3d at 631.
Liu’s second motion to reopen exceeded the time and number limitations of
§ 1229a(c)(7)(C). Accordingly, the BIA did not abuse its discretion by denying
Liu’s second motion to reopen on those grounds. See Manzano-Garcia, 413 F.3d
at 469. The petition for review is, therefore, DENIED.
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