[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-11096 OCT 6, 2008
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
Agency No. A95-467-733
JIAN YING WENG,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(October 6, 2008)
Before TJOFLAT, BLACK and MARCUS, Circuit Judges.
PER CURIAM:
Jian Ying Weng, a native and citizen of China proceeding through counsel,
seeks review of the decision by the Board of Immigration Appeals (“BIA”)
denying her motion to reopen her removal proceedings. On appeal, she contends
that she submitted new evidence of changed country conditions and that the BIA
abused its discretion in denying her motion to reopen.1 After careful review, we
affirm.
We review the denial of a motion to reopen for an abuse of discretion. Mejia
Rodriguez v. Reno, 178 F.3d 1139, 1145 (11th Cir. 1999). After the BIA has
affirmed an IJ’s order of removal, the alien may move to have the BIA, in its
discretion, reopen the removal proceedings for the submission of new evidence.
See 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(1). A motion to reopen
proceedings shall not be granted unless it appears to the BIA that the evidence
sought to be offered is material and was not available and could not have been
discovered or presented at the former hearing. 8 C.F.R. § 1003.2(c)(1).
“[A] party may file only one motion to reopen deportation or exclusion
proceedings . . . and that motion 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). One exception to this deadline is
for material evidence of changed country conditions which “was not available and
1
As the government correctly notes, we lack jurisdiction over Weng’s claims stemming
from the BIA’s original denial of relief because Weng failed to timely appeal from that order.
Cf. 8 U.S.C. §§ 1252(a)(1), 1252(b)(1); Dakane v. U.S. Att’y Gen., 399 F.3d 1269, 1272 n.3
(11th Cir. 2005). We therefore lack jurisdiction to review the immigration judge’s (“IJ’s”)
adverse credibility determination and order denying asylum, withholding of removal, and CAT
relief, and the BIA’s initial order dismissing Weng’s appeal from the IJ’s order. Thus, the only
issue on appeal is whether the BIA abused its discretion by denying Weng’s motion to reopen.
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could not have been discovered or presented at the previous hearing.” 8 C.F.R.
§ 1003.2(c)(3)(ii). An alien who attempts to show that the evidence is material
bears a heavy burden and must present evidence that satisfies the BIA that, if
proceedings were reopened, the new evidence would likely change the result in the
case. Ali v. U.S. Att’y Gen., 443 F.3d 804, 813 (11th Cir. 2006). Nonetheless,
“[t]he 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). “Motions to
reopen are disfavored, especially in a removal proceeding, where, as a general
matter, every delay works to the advantage of the deportable alien who wishes
merely to remain in the United States.” Abdi v. U.S. Att’y Gen., 430 F.3d 1148,
1149 (11th Cir. 2005) (internal quotation marks omitted).
Here, the BIA did not abuse its discretion in denying Weng’s motion to
reopen. To the extent she argues that her two American-born children constitute
changed circumstances, both children were born before the removal hearing and,
therefore, they are not a basis for reopening for two reasons. First, the births are
changed personal circumstances, not changed circumstances in the country of
nationality. Cf. 8 C.F.R. § 1003.2(c)(3)(ii). Second, the evidence was available
and was presented by Weng in support of her asylum application and rejected by
the BIA in 2005.
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With respect to the other evidence, i.e., the 2006 Country Report, that was
not a basis alone for granting relief. Because Weng was found not credible in her
original asylum proceeding with respect to her testimony of past persecution based
on a forced abortion and attempts to escape China’s birth control policy, her
situation is factually and legally distinguishable from other cases, including Li v.
U.S. Att’y Gen., 488 F.3d 1371, 1372 (11th Cir. 2007). Unlike the affidavits
submitted in Li, the affidavit and letter submitted by Weng do not discuss an
increase in birth-control related persecution in Fujian Province, see Li, 488 F.3d
at 1373, and the 2006 Country Report suggests that country conditions have not
deteriorated in Fujian, but that China has “continued its coercive birth limitation
policy.” Accordingly, the evidence presented by Weng does not establish a
material change in country conditions in China.
Finally, to the extent Weng argues that the BIA’s order denying her motion
to reopen was inadequate, the BIA “has no duty to write an exegesis on every
contention. What is required is merely that it consider the issues raised, and
announce its decision in terms sufficient to enable a reviewing court to perceive
that it has heard and thought and not merely reacted.” Osuchukwu v. I.N.S., 744
F.2d 1136, 1142-43 (5th Cir. 1984). The BIA did that here.
PETITION DISMISSED IN PART AND DENIED IN PART.
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