[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-10145 ELEVENTH CIRCUIT
AUGUST 31, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
Agency No. A070-894-772
XING CAI ZHAO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(August 31, 2009)
Before BIRCH, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Xing Cai Zhao, a native and citizen of China, seeks review of the Board of
Immigration Appeals’s (“BIA”) order denying his second motion to reopen his
removal proceedings. Zhao sought asylum, withholding of removal, and/or
protection under the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment based on the forced abortion of his wife1 in
China, which the Immigration Judge (“IJ”) denied. The BIA dismissed his appeal.
Several years later, Zhao moved to reopen his removal proceedings, asserting that,
based on his marriage in the United States to Dan Lin and the birth of their three
children as well as changes in China’s family planning policy since the time of his
original removal hearing, he would likely be subject to forced sterilization upon
return to China. The BIA denied his motion and his motion for reconsideration.
Zhao did not petition this court for review of either of those decisions.
Zhao then filed a second motion to reopen his removal proceedings asserting
the same basis for reopening as he did in his first motion. The BIA denied that
motion and Zhao now seeks review in this petition.
“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).
Generally, a party may file only 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
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Zhao testified that he married Xue-Ying in 1988 in China and that when she became
pregnant, the couple attempted to register their marriage, but were denied by the Chinese
officials because they were underage.
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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 ninety days after the final administrative decision. See 8 C.F.R.
§ 1003.2(c)(2). An exception to the ninety day and one motion limits provides that
they shall not apply if the motion to reopen “is based on changed country
conditions arising in the country of nationality or the country to which removal has
been ordered, if such evidence is material and was not available . . . at the previous
proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). We have
interpreted § 1229a(c)(7)(C)(ii)”s reference to “the previous proceeding” to mean
the removal proceeding the alien seeks to reopen – not the alien’s previously-filed
motion to reopen. See Li v. U.S. Att’y Gen., 488 F.3d 1371, 1375 (11th Cir.
2007).
In support of his second motion to reopen, Zhao submitted his own affidavit,
asserting that he had been married and had three children since his asylum
application was denied, a fee waiver request, a copy of his marriage certificate, and
birth certificates for his three children. Unlike our recent decisions in Zhang v.
U.S. Att’y Gen., ___ F.3d ___, ___, 2009 WL 1856787 (11th Cir. June 30, 2009)
and Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1258 (11th Cir. 2009) where we
directed the BIA to reopen removal proceedings based on the petitioner’s
submission of documentary evidence that demonstrated China’s one-child policy
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was being enforced more strictly than before, none of the evidence Zhao submitted
with his second motion to reopen shows that forced sterilization had become more
common in his hometown. Rather this evidence demonstrates changes in Zhao’s
personal circumstances only, which is insufficient to support a late-filed motion to
reopen based on changed country conditions. See Chen v. U.S. Att’y Gen., 565
F.3d 805, 809-10 (11th Cir. 2009). Had Zhao submitted evidence of changed
country conditions with his second motion to reopen, his claim may have found
support in our recent decisions in Zhang and Jiang. However, because Zhao failed
to present sufficient evidence of changed country conditions in China with his
second motion to reopen, the BIA did not abuse its discretion in denying his late-
filed motion to reopen.
PETITION DENIED.
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