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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13472
Non-Argument Calendar
____________________
ZHONG JIANG,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A096-112-273
____________________
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2 Opinion of the Court 21-13472
Before ROSENBAUM, JILL PRYOR, and BRANCH, Circuit Judges.
PER CURIAM:
Zhong Jiang petitions for our review of the Board of Immi-
gration Appeals’s (“BIA”) order denying his motion to reopen his
removal proceedings. He contends that, since his final order of re-
moval in 2005, his conversion to Christianity and the materially
changed conditions in China regarding the treatment of Christians
warrant reopening his proceedings.
Upon consideration, we find that the BIA did not abuse its
discretion in denying Jiang’s motion based on his failure to establish
a material change in conditions in China to overcome the 90-day
time bar. So we deny Jiang’s petition for review.
I.
A. Initial Removal Proceedings
Jiang is a native and citizen of China. He entered the United
States at the Atlanta airport and applied for a Visa waiver. Jiang
filed an I-589 application for asylum, withholding of removal, and
relief under the United Nations Convention Against Torture and
Other Cruel, Inhuman, or Degrading Treatment or Punishment
(“CAT”), alleging he was persecuted in China for his association
with Falun Gong.1
1 Falun Gong is a new religious movement in China that blends aspects of
Taoism, Buddhism, and the meditation techniques of Qigong (a traditional
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21-13472 Opinion of the Court 3
In support of his I-589 application, Jiang provided the 2002
country report on China published by the U.S. State Department.
The country report stated that while China’s constitution allowed
for religious freedom, in reality, the government was cracking
down against unregistered religious groups. According to the re-
port, the Chinese government targeted underground Protestant
and Catholic groups, as well as groups that it considered to be cults
like Falun Gong. The report found that all religious groups were
required to register with the State. It also stated that the leaders of
unauthorized religious groups were the target of harassment, in-
terrogations, detention, and physical abuse.
An Immigration Judge (“IJ”) held a hearing in May 2003.
Jiang testified that he came to the United States because he was a
member of Falun Gong and was persecuted in China. He said that
he practiced Falun Gong in private with another member. Jiang
attested he was afraid to return to China because he would be ar-
rested. He asserted that he would continue to practice Falun Gong
if he returned to China.
The IJ found that Jiang’s testimony was not credible. It de-
termined that there was no nexus between any persecution Jiang
feared and his practice of Falun Gong because he practiced in
martial art) with the teachings of Li Hongzhi, its founder and leader. See Jiang
v. U.S. Atty. Gen., 155 F. App’x 470, 470 (11th Cir. 2005). In 1999, the Chinese
government banned Falun Gong as a “threat to social and political stability”
and began a nationwide crackdown against it. Id.
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4 Opinion of the Court 21-13472
private. The IJ thought that Jiang had been coached and his belief
in Falun Gong was not genuine. So the IJ denied Jiang relief and
ordered that he be removed to China.
Jiang appealed the IJ’s decision to the BIA, and in 2005, the
BIA affirmed the removal order. The BIA found that the IJ’s ad-
verse credibility determination was supported by the evidence,
based on many inconsistencies in Jiang’s testimony. It also found
that Jiang failed to present corroborating evidence or to explain dis-
crepancies in the evidence that he presented.
Jiang then petitioned for our review of the BIA’s decision.
We denied Jiang’s petition. Jiang v. U.S. Atty. Gen., 155 F. App’x
470 (11th Cir. 2005).
B. Jiang’s Motion to Reopen
In March 2019, Jiang moved the BIA to reopen his proceed-
ings. He submitted a declaration and claimed to have converted to
Christianity after his cousin was released from immigration deten-
tion and members of his cousin-in-law’s church prayed for his
cousin’s release. Jiang submitted an updated I-589 application,
which said that he feared returning to China because he would be
arrested, detained, and harmed by the Chinese government be-
cause of his belief in Christianity. He reasserted that he had prac-
ticed Falun Gong while he was in China.
Jiang also presented several reports in support of his motion
to reopen, including, among other things, country reports from
2002, 2005, and 2008, the U.S. State Department’s 2011
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21-13472 Opinion of the Court 5
International Religious Freedom Report, the U.S. State Depart-
ment’s 2017 International Religious Freedom Report, the Congres-
sional-Executive Commission’s 2018 report, the 2016 U.S. State De-
partment International Religious Freedom Report, and an excerpt
from the 2018 report from the U.S. Commission of International
Religious Freedom. Jiang argued that these reports established a
recent increase in the persecution of underground churches in
China. He further argued that this evidence was not available at
the time of his initial proceedings and that it established worsened
conditions for members of underground churches in China.
The government responded that Jiang had failed to demon-
strate changed country conditions that would warrant reopening.
It relied on the 2002 country report on China, which stated that
authorities were “quick to suppress religious, political, and social
groups perceived to be a threat to the government.” The 2002 re-
port also said that the Chinese government targeted members of
underground churches as part of a campaign against crime. The
government argued that because the Chinese government had
been mistreating Christians since the time of Jiang’s initial proceed-
ings, Jiang did not meet his burden of establishing changed country
conditions.
The BIA denied Jiang’s motion to reopen. It found that Jiang
failed to establish a material change in conditions in China to ex-
cuse his untimely filing of the motion. The BIA stated that the
country reports available during Jiang’s initial proceedings showed
that the government in China closed underground house churches
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6 Opinion of the Court 21-13472
and detained and harassed leaders of those churches. It found that
the evidence reflected that unauthorized Christian groups faced
“significantly adverse conditions in China even before [Jiang’s] final
removal hearing.”
Alternatively, the BIA found that even if the conditions in
China excused the untimeliness of Jiang’s motion, he failed to show
that those purported changes were material to his eligibility for re-
lief. The BIA noted that Jiang’s new claim of fear of persecution
because of his conversion to Christianity was similar to his previ-
ous claim based on his practice of Falun Gong because both were
based on his proclaimed religious beliefs. The BIA determined that
Jiang had not presented evidence sufficient to rehabilitate his cred-
ibility following the IJ’s adverse credibility determination in his
original proceedings. Considering the adverse credibility determi-
nation from the original proceedings, the BIA concluded, Jiang’s
declaration was not sufficient to establish that the mistreatment of
Christians in China was material to his claim for relief and protec-
tion from removal. Additionally, the BIA found that even if Jiang
established that he would continue to practice Christianity in
China, he did not prove that he would join an underground church
instead of a state-sponsored church. Finally, the BIA declined to
exercise its discretion to reopen proceedings sua sponte because
Jiang did not establish that his case showed “truly exceptional situ-
ations” where doing so is proper.
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21-13472 Opinion of the Court 7
This petition for review followed.2
II.
We review the denial of a motion to reopen an immigration
proceeding for an abuse of discretion, under which we determine
only whether the BIA exercised its discretion arbitrarily or capri-
ciously. Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256 (11th Cir.
2009). “The BIA abuses its discretion when it misapplies the law in
reaching its decision,” or when it fails to follow its own precedents
“without providing a reasoned explanation for doing so.” Ferreira
v. U.S. Att’y Gen., 714 F.3d 1240, 1243 (11th Cir. 2013). The peti-
tioner bears a heavy burden in proving arbitrariness or capricious-
ness because motions to reopen in the context of removal proceed-
ings are particularly disfavored. Zhang v. U.S. Att’y Gen., 572 F.3d
1316, 1319 (11th Cir. 2009).
2 As an initial matter, we don’t have jurisdiction to review the BIA’s decision
not to sua sponte reopen proceedings. Lenis v. U.S. Att’y Gen., 525 F3d 1291,
1294 (11th Cir. 2008). Also, Jiang does not address this issue on appeal, so he
has forfeited this challenge. See United States v. Campbell, 26 F.4th 860, 871–
72 (11th Cir. 2022).
We can, however, review the portion of the BIA’s decision regarding
the motion to reopen. See Reyes Mata v. Lynch, 576 U.S. 143, 148 (2015) (ex-
plaining that a court’s jurisdiction to review the BIA’s denial of motion to re-
open remains unchanged if the BIA also states that it will not exercise its sep-
arate sua sponte authority to reopen the case, as the fact that “courts lack ju-
risdiction over one matter (the sua sponte decision) does not affect their juris-
diction over another (the decision on the [petitioner]’s request)”).
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8 Opinion of the Court 21-13472
We review claimed legal errors, such as whether the agency
failed to give reasoned consideration to an issue, de novo. Jeune v.
U.S. Att’y. Gen., 810 F.3d 792, 799 (11th Cir. 2016). The BIA does
not give reasoned consideration to a claim when it misstates the
contents of the record, fails to adequately explain its rejection of
logical conclusions, or provides justifications for its decision that
are unreasonable and do not respond to any arguments in the rec-
ord. Id. Reasoned-consideration review is not a review for
whether the agency’s findings have evidentiary support, but only
for whether the decision is “so fundamentally incomplete,” in light
of the facts and claims presented in the case, “that a review of legal
and factual determinations would be quixotic.” Indrawati v. U.S.
Att’y Gen., 779 F.3d 1284, 1302 (11th Cir. 2015).
A motion to reopen proceedings must ordinarily be filed
within 90 days of the date of a removal order and must state the
new facts that will be proven at a hearing to be held if the motion
is granted and be supported by affidavits or other evidentiary ma-
terial. INA § 240(c)(7), 8 U.S.C. § 1229a(c)(7). However, there’s no
time limit on the filing of a motion to reopen to apply for asylum
or withholding of removal based on “changed country conditions
arising in the country of nationality or the country to which re-
moval has been ordered, if such evidence is material and was not
available and would not have been discovered or presented at the
previous proceeding.” INA § 240(c)(7)(C)(ii), 8 U.S.C.
§ 1229a(c)(7)(C)(ii).
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21-13472 Opinion of the Court 9
The movant cannot circumvent the requirement of changed
country conditions by demonstrating only a change in personal cir-
cumstances. Chen v. U.S. Att’y Gen., 565 F.3d 805, 809–10 (11th
Cir. 2009). In Zhang, we held that the petitioner’s birth of her two
children constituted a change in country conditions in China, ra-
ther than a change in personal circumstances, when she provided
evidence of an increased local enforcement of China’s one-child
policy through increased forced sterilization. Zhang, 572 F.3d at
1320. By contrast, in Blake, we held that a petitioner, who had tes-
tified against a Jamaican gang kingpin that had been in power since
at least the 1990s, only demonstrated a change in personal circum-
stances “because he testified, not because Jamaica became more
hostile to informants between 2009 and 2019.” Blake v. U.S. Att’y
Gen., 945 F.3d 1175, 1180 (11th Cir. 2019).
In Matter of S-Y-G-, the BIA stated that, in determining
whether evidence accompanying a motion to reopen demon-
strated a material change in country conditions that would justify
reopening, it compared the evidence of country conditions submit-
ted with the motion to those that existed at the time of the merits
hearing below. Matter of S-Y-G-, 24 I. & N. Dec. 247, 253 (BIA
2007). The BIA concluded that change that was incremental or in-
cidental did not meet the regulatory requirements and that a new
report or a new law was not evidence of changed conditions with-
out convincing evidence that the prior version of the law was dif-
ferent, or was differently enforced, in some relevant and material
way. Id. at 257. In Matter of F-S-N-, the BIA, relying on Matter of
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10 Opinion of the Court 21-13472
S-Y-G-, found that, considering provided country reports for Cam-
eroon in the two years following a noncitizen’s 2016 removal hear-
ing indicated that unrest had continued and conditions had not ma-
terially deteriorated in that period, her general allegations, without
more, did not establish a material change in country conditions.
Matter of F-S-N-, 28 I. & N. Dec. 1, 6 (BIA 2020).
Here, the BIA acted within its discretion in denying Jiang’s
motion to reopen because his motion was time-barred and he failed
to establish an exception to the bar. Jiang failed to provide suffi-
cient evidence that conditions for members of unregistered house
churches in China were materially different than the conditions at
the end of his original proceedings in 2003. The BIA’s order deny-
ing relief reflects that it considered the country reports available at
the time of Jiang’s original removal proceedings and the reports
available at the time of his motion to reopen. See; Matter of S-Y-
G-, 24 I. & N. Dec. at 253; Jeune, 810 F.3d at 799.
Jiang argues that the BIA failed to analyze evidence that he
presented and asks us to take judicial notice of various reports on
country conditions. But we can consider only evidence in the Ad-
ministrative Record when reviewing an order of the BIA. INA §
242(b)(4)(A), 8 U.S.C. § 1252(b)(4)(A) (“the court of appeals shall
decide the petition only on the administrative record on which the
order of removal is based”); see also INA § 242(a)(1), 8 U.S.C.
§ 1252(a)(1) (“the court may not order the taking of additional evi-
dence” under 28 U.S.C. § 2347(c)). It was Jiang’s burden to present
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21-13472 Opinion of the Court 11
evidence to the BIA that proceedings should be reopened. Zhang,
572 F.3d at 1319. That burden was not met.
Based on the 2002 country report in the record, the Chinese
government targeted and harassed leaders of unregistered
churches and closed many of those churches. It’s true that Jiang
did provide evidence that, as of 2018, the government continued to
harass leaders of underground churches and evict the churches
from their places of worship. But the evidence Jiang offered did
not establish that there was more than an incremental increase in
the repression of house churches. Instead, Jiang has shown a
change in his personal circumstances based on his conversion to
Christianity, which is not sufficient to establish a change in country
conditions.
In sum, Jiang has failed to show a material change in circum-
stances in China since his final order of removal in 2005 to over-
come the 90-day time bar for filing a motion to reopen. The BIA
did not abuse its discretion in determining that his motion to reo-
pen was untimely. We deny Jiang’s petition for review.
PETITION DENIED.