[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 30, 2009
No. 09-10259 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A077-297-106
MEI SHAO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(September 30, 2009)
Before TJOFLAT, BLACK and PRYOR, Circuit Judges.
PER CURIAM:
Petitioner Mei Shao, a native and citizen of China, through counsel, seeks
review of a Board of Immigration Appeals (BIA) order denying her second motion
to reopen its previous decision dismissing her appeal of the Immigration Judge’s
(IJ) final removal order. The IJ’s order denied Shao’s claims for asylum and
withholding of removal under the Immigration and Nationality Act (INA), and
relief under the United Nations Convention on Torture and other Cruel, Inhuman
or Degrading Treatment or Punishment (CAT). On appeal, Shao argues the BIA
committed legal error in denying her motion to reopen by failing to consider her
evidence appropriately. She submits the evidence was sufficient to establish
changed country conditions in China with respect to its enforcement of the
one-child policy.1
“We review the denial of a motion to reopen removal proceedings for abuse
of discretion.” Li v. U.S. Att’y Gen., 488 F.3d 1371, 1374 (11th Cir. 2007). “Our
review is limited to determining whether there has been an exercise of
administrative discretion and whether the matter of exercise has been arbitrary or
1
Shao contends the BIA committed legal error in failing to distinguish her case from the
BIA’s decisions in In re S-Y-G, 24 I.&N. Dec. 247 (BIA 2007), and In re J-W-S-, 24 I.&N. Dec.
185 (BIA 2007). We do not address this argument because the BIA did not rely on these
decisions in denying her second motion to reopen. Shao also argues the BIA abused its
discretion in failing to consider her pending I-485 adjustment application. We do not address
this argument because it does not pertain to whether she has shown a change in country
conditions that would enable the BIA to grant her motion to reopen.
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capricious.” Montano Cisneros v. U.S. Att’y Gen., 514 F.3d 1224, 1226 (11th Cir.
2008).
An alien may file one motion to reopen removal proceedings and such
motion generally must be filed within 90 days of the date of the BIA’s final
administrative removal order. 8 U.S.C. § 1229a(c)(7)(A), (C)(i). A motion to
reopen will not be subject to the time and numerical bars if the motion seeks
asylum or withholding of removal and 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 and would not have
been discovered or presented at the previous proceeding.” 8 U.S.C.
§ 1229a(c)(7)(C)(ii). “An alien who attempts to show that the evidence is material
bears a heavy burden and must present evidence that demonstrates that, if the
proceedings were opened, the new evidence would likely change the result in the
case.” Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256-57 (11th Cir. 2009).
In Li, we held the BIA abused its discretion in denying Li’s motion to reopen
her removal proceedings based on its finding she failed to establish changed
country conditions in China. 488 F.3d at 1375, 1377.2 Li, a native and citizen of
China and a mother of two children, at least one of whom was born in the United
2
This Court reached the same result in Jiang, noting the case was “startlingly like the
case of Li” and finding “no discernable difference between the evidence presented in Li and the
evidential foundation” before it in Jiang. Jiang, 568 F.3d at 1257-58.
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States, sought to reopen proceedings based on previously unavailable evidence that
Chinese officials in her home village in the Fujian Province were enforcing a
one-child policy through the use of forced sterilization. Id. at 1372-73. In support
of her claim, Li submitted, inter alia, the following evidence: (1) her own affidavit,
reporting second-hand accounts of forced sterilization and abortion in her village in
the previous year; (2) her mother’s affidavit, reporting family planning
enforcement had become “more severe” in their village, sterilizations “were more
common than before,” and 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 on China, which was available at the original removal
hearing, indicating the one-child policy was more relaxed in rural areas, but
couples with two children were “usually pressured to undergo sterilization”; (4) the
2004 Country Report, which was not available at the original removal hearing,
indicating couples with two children were “often pressured to undergo
sterilization”; and (5) the 2005 Country Report, also unavailable at the original
hearing, indicating forced sterilization and abortion were prevalent in rural
provinces. Id. at 1373.
We noted the BIA “found neither Li’s affidavit nor her mother’s affidavit
incredible.” Id. at 1375. Next, we noted the background materials on China
supported Li’s fear that officials in the Fujian Province had “incentives and
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discretion” to sterilize women with more than one child. Id. We held “Li’s
evidence of a recent campaign of forced sterilization in her home village, evidence
consistent with the conclusion of recent government reports, clearly satisfied the
criteria for a motion to reopen her removal proceedings.” Id. Finally, we held the
BIA erroneously concluded Li failed to establish a policy of persecuting women
with two foreign-born, as opposed to native, children, as the distinction was not
supported by any evidence in the record. Id. at 1376.
Here, the BIA did not abuse its discretion in denying Shao’s second motion
to reopen. Unlike the petitioner in Li, who supplied evidence showing an escalation
of the enforcement of the one-child policy, Shao offered no evidence supporting
her assertion that enforcement of the one-child policy through forced sterilizations
has increased in China since the time of the BIA’s August 12, 2005, decision in the
original asylum proceedings, or its December 28, 2007, order denying her first
motion to reopen.3 In support of her second motion to reopen, Shao primarily
relies on an Administrative Notice to establish a change in China’s country
conditions. The Administrative Notice specifically provides she will be subjected
3
To the extent the BIA, in its December 28, 2007, order, considered Shao’s evidence
and found she failed to meet her burden to show a material change in China’s country conditions
that would enable it to grant her untimely motion, this Court does not have jurisdiction to revisit
that decision because it does not appear Shao filed a petition for review with this Court with
respect to that decision. See Dakane v. U.S. Att’y Gen., 399 F.3d 1269, 1272 n.3 (11th Cir.
2005) (noting that this Court did not have jurisdiction to revisit the BIA’s final order of removal
because Dakane failed to file a timely petition for review of that decision).
5
to sterilization upon her return to China. Shao’s Declaration in support of the
motion also primarily relies on the contents of the Administrative Notice.
However, in contrast to the affidavits offered in Li, the credibility of which was not
challenged, the BIA noted the Administrative Notice was “unsigned,
unauthenticated and conflicts with known country conditions evidence,” and
declined to give the document more weight than the 2007 Profile. See Li, 488 F.3d
at 1375. The BIA was entitled to discount this unauthenticated document. See
Yang v. U.S. Att’y Gen., 418 F.3d 1198, 1202 n.3 (11th Cir. 2005) (“Though we do
note that Yang submitted official documentation from the Chinese government
indicating that she underwent a ‘sterilization procedure,’ this document has not
been authenticated, and thus we cannot depend on its veracity.”). Furthermore, the
2007 Profile provided “U.S. officials in China are not aware of the alleged official
policy, at the national or provincial levels, mandating the sterilization of one
partner of couples that have given birth to two children, at least one of whom was
born abroad,” and, in the Fujian Province, children born abroad, if not registered as
permanent residents of China, are “not counted against the number of children
allowed under China’s family planning law,” but are not eligible for various social
benefits upon their return to China. The BIA was entitled to rely on these
statements in the 2007 Profile in support of its finding Shao failed to establish
China’s country conditions had changed or she would be sterilized upon her return
6
to China. See Djonda v. U.S. Att’y Gen., 514 F.3d 1168, 1175 (11th Cir. 2008)
(noting this Court has held the BIA is “entitled to rely heavily on country reports”)
(quotation omitted).
Because the BIA could reasonably conclude Shao did not provide sufficient
evidence to establish changed country conditions in China with respect to its
enforcement of the one-child policy, the BIA did not abuse its discretion in
denying her untimely and number-barred motion to reopen. Li, 488 F.3d at 1374.
Based on our review of the record and consideration of the parties’ briefs, we deny
the petition for review.
PETITION DENIED.
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