[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-11399 Oct. 6, 2009
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
Agency No. A078-743-445
YAN JUAN HUANG,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(October 6, 2009)
Before CARNES, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Yan Juan Huang, a Chinese citizen native to Fujian Province, seeks review
of the Board of Immigration Appeal’s (“BIA”) order dismissing her appeal from
the denial of her motion to reopen removal proceedings as untimely. Huang
sought asylum and withholding of removal under the Immigration and Nationality
Act and relief under the United Nations Convention Against Torture and Other
Cruel, Inhuman, or Degrading Treatment or Punishment based on a claimed fear of
persecution on account of her Christian religion. Although Huang withdrew her
application in August 2005 and was ordered removed to China, she moved to
reopen removal proceedings in January 2008, asserting that, based on her marriage
in the United States and the birth of her two children, as well as changes in China’s
family planning policy, she held a well-founded fear of being forcibly sterilized
upon return to China. An immigration judge (“IJ”) denied her untimely motion to
reopen and the BIA dismissed her appeal for failure to demonstrate that country
conditions in China had changed since her prior removal proceeding. On appeal,
Huang argues that the BIA abused its discretion by refusing to grant reopening on
account of a material change in personal circumstances, and neglecting to consider
evidence purportedly showing that local family planning officials altered their
enforcement of China’s one-child policy. After careful review, we grant the
petition, vacate the BIA’s order, and remand to the BIA for further consideration.
When the BIA issues a decision, we review only that decision, except to the
extent that the BIA expressly adopts the IJ’s opinion. Al Najjar v. Ashcroft, 257
F.3d 1262, 1284 (11th Cir. 2001). “Insofar as the [BIA] adopts the IJ’s reasoning,
we will review the IJ’s decision as well.” Id. Here, although the BIA noted that it
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discerned no error in the IJ’s decision for the reasons cited therein, it issued its own
opinion and added its own analysis without expressly adopting the IJ’s opinion.
As such, we review only the BIA’s decision.
We review the denial of a motion to reopen removal proceedings for abuse
of discretion. Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1319 (11th Cir. 2009).
Judicial review “is limited to determining whether there has been an exercise of
administrative discretion and whether the matter of exercise has been arbitrary or
capricious.” Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1149 (11th Cir. 2005)
(quotation omitted). Motions to reopen are especially disfavored in removal
proceedings, “where, as a general matter, every delay works to the advantage of the
deportable alien who wishes merely to remain in the United States.” Ali v. U.S.
Att’y Gen., 443 F.3d 804, 808 (11th Cir. 2006) (quotation omitted). Although the
BIA is not required to discuss every piece of evidence presented, it is required to
give reasoned consideration to all the evidence submitted by the petitioner. See
Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1376 (11th Cir. 2006) (reviewing the denial
of an application for withholding of removal). If the BIA fails to give “reasoned
consideration” or make “adequate findings,” it is appropriate to vacate and remand
for further proceedings. Id. at 1376-77 (quotation omitted).
Ordinarily, an alien who is subject to a final order of removal and wishes to
reopen the proceedings must file a motion to reopen within 90 days of the date of
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the final removal order. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).
Nevertheless, the time limit is inapplicable if the alien can demonstrate “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); see 8 C.F.R. § 1003.2(c)(3)(ii). An alien cannot
circumvent the requirement of showing changed country conditions by
demonstrating only a change in personal circumstances. Zhang, 572 F.3d at 1319.
In several recent decisions, we held that evidence of enhanced enforcement or a
recent campaign of forced sterilization in a petitioner’s home province is sufficient
to establish changed country conditions to warrant reopening of removal
proceedings. See Li v. U.S. Att’y Gen., 488 F.3d 1371, 1375-76 (11th Cir. 2007),
Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1257-58 (11th Cir. 2009), and Zhang, 572
F.3d at 1318-20.
Because Huang’s motion to reopen was untimely, she needed to establish
changed country conditions with previously unavailable evidence, and could not
simply rely on evidence of changed personal circumstances. Huang failed to
present evidence demonstrating increased enforcement in her home province with
respect to Chinese natives, but she offered some evidence that may suggest that
enforcement was significantly altered with respect to returnees with foreign-born
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children. Previously available evidence from 2004 indicated that Fujian officials
sanctioned the use of economic penalties on returnees to ensure compliance with
the national family planning policy, but not physically coercive methods such as
forced sterilization. A November 2007 “Notice Regarding the Birth Control Policy
of Fujian Province,” however, stated that Chinese citizens with foreign-born
children would become targets for sterilization and were required to return to
China to undergo sterilization procedures. It is unclear from the BIA’s opinion
whether it considered this 2007 Notice as it relates to returnees like Huang.
Because the BIA determined that Huang presented no evidence of escalated
enforcement, its decision does not reflect reasoned and adequate consideration of
all the evidence submitted in support of the motion to reopen, particularly the 2007
Notice. As a result, we find it necessary to remand to permit the BIA to consider
the totality of the evidence in determining whether it is sufficient to establish
changed country conditions. See Tan, 446 F.3d at 1376-77. Accordingly, we grant
the petition for review, vacate the order denying the motion to reopen, and remand
to the BIA for further consideration consistent with this opinion.
PETITION GRANTED; VACATED and REMANDED TO THE BIA.
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