[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 1, 2008
THOMAS K. KAHN
No. 07-15304
CLERK
Non-Argument Calendar
________________________
BIA No. A77-924-727
CHUN RONG YANG,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(May 1, 2008)
Before BIRCH, DUBINA and FAY, Circuit Judges.
PER CURIAM:
Chun Rong Yang, a native and citizen of China, petitions, through counsel,
for review of the Board of Immigration Appeals’ (“BIA”) order denying her third
motion to reopen and rescind her in absentia removal order. On review, Yang
argues that the BIA failed to give proper weight to the evidence she provided in
support of her claim that she would be forcibly sterilized if she were to return to
China after giving birth to two children in the United States. She contends that the
BIA erred by denying her motion to reopen in light of this evidence of changed
circumstances. Yang asserts that she will be forcibly sterilized even though her
children were born in the United States because neither she nor her husband have
legal status in the United States, which would potentially exempt them from family
planning regulations.
For the reasons set forth more fully below, we deny the petition for review.1
We review “the BIA’s denial of a motion to reopen for an abuse of
discretion.” Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1149 (11th Cir. 2005).
Review “is limited to determining whether there has been an exercise of
1
Yang has failed to address in her initial brief the BIA’s finding that it had previously
found that she failed to establish a well-founded fear of future persecution and, thus, a prima
facie case of asylum eligibility. Accordingly, she has abandoned the issue and we do not address
it. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (holding that,
where an appellant fails to raise arguments regarding an issue on appeal, that issue is deemed
abandoned).
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administrative discretion and whether the matter of exercise has been arbitrary or
capricious.” Id. (quotation omitted).
A party may only file one motion to reopen removal proceedings, and that
motion “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).
The 90-day time limit does not apply if the motion to reopen is filed on the basis of
changed circumstances in the country of the movant’s nationality.
1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). To meet this exception, a movant
must show material evidence that was not available and could not have been
discovered or presented at the previous hearing. Id.
In Li v. U.S. Att’y Gen., 488 F.3d 1371, 1373 (11th Cir. 2007), we
interpreted the “changed country conditions” exception and concluded that the BIA
erred by denying a motion to reopen based on new evidence that officials in Li’s
hometown “had intensified their persecution of parents of two children.” In Li, the
petitioner submitted the following evidence in support of her motion to reopen:
(1) her own affidavit, reporting recent second-hand accounts of forced sterilization
and abortion in her village in the previous year; (2) her mother’s affidavit,
reporting that family planning enforcement had become “more severe” in their
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village, that sterilizations “were more common than before,” and that three women
from their village recently had been forcibly sterilized after giving birth to their
second child; (3) the 2003 U.S. State Department Country Report, which was
available at the original removal hearing, indicating that the one-child policy was
more relaxed in rural areas but that couples with two children were “usually
pressured to undergo sterilization”; (4) the 2004 U.S. State Department Country
Report, which was not available at the original removal hearing, indicating that
couples with two children were “often pressured to undergo sterilization”; and
(5) the 2005 U.S. State Department Country Report, indicating that forced
sterilization and abortion were prevalent in rural provinces. Id.
The BIA denied Li’s motion, reasoning that the anecdotal evidence of
sterilization in her hometown province established “‘only that the family planning
policies are enforced generally in [the movant’s] hometown and that they were
enforced specifically against the person identified [in the anecdotes].’” 488 F.3d at
1374. We rejected the BIA’s reasoning, particularly in light of Li’s evidence of “a
recent campaign of forced sterilization in her home village,” and concluded that
she had presented sufficient evidence of changed circumstances to excuse her
untimely motion to reopen. Id. at 1375.
Here, Yang argues that evidence of a change to her personal circumstances
since the time that she was ordered removed in absentia--that is, the intervening
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birth of her two children--when coupled with evidence that the enforcement of
China’s family planning regulations remains strong and has not been relaxed,
established “changed country circumstances.” The exception to the 90-day period
for filing a motion to reopen applies where the petitioner establishes “changed
circumstances arising in the country of nationality,” 8 C.F.R. § 1003.2(c)(3)(ii),
and not changed personal circumstances, such as the ones relied on by Yang.
Unlike the evidence presented in Li, here, Yang relied on evidence that officials
continue to enforce the one-child policy through tactics such as forced sterilization,
without any argument that the manner of enforcement has worsened. Moreover,
much of the evidence Yang presented discusses conditions in China prior to her
initial hearing in May 2000. Further, to the extent Yang cites the 2007 U.S. State
Department Country Report in her initial brief, this evidence was not before the
BIA and we do not consider it. Al Najjar v. Ashcroft, 257 F.3d 1262, 1283 (11th
Cir. 2001). Accordingly, because Yang failed to present evidence of changed
country conditions, as opposed to changed personal circumstances, since the time
that she was ordered removed in absentia, the BIA did not abuse its discretion in
denying her motion to reopen.
In light of the foregoing, Yang’s petition for review is DENIED.
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