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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-10730
Non-Argument Calendar
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Agency No. A079-670-212
LIFANG LIN,
llllllllllllllllllllllllllllllllllllllll Petitioner,
versus
U.S. ATTORNEY GENERAL,
llllllllllllllllllllllllllllllllllllllll Respondent.
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Petition for Review of a Decision of the
Board of Immigration Appeals
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(January 28, 2013)
Before HULL, JORDAN and KRAVITCH, Circuit Judges.
PER CURIAM:
Lifang Lin seeks review of the Board of Immigration Appeals’ (BIA’s)
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order denying her second motion to reopen her removal proceedings. After careful
review, we deny the petition.
I.
Lin, a native and citizen of the People’s Republic of China, was served with
a Notice to Appear in 2003 charging her with removability under 8 U.S.C.
§ 1182(a)(7)(A)(i)(I), as an alien not in possession of a valid immigrant visa or
entry document. Lin conceded removability but filed applications for asylum,
withholding of removal, and relief under the United Nations Convention Against
Torture. In 2004, an Immigration Judge denied Lin’s applications for relief. Lin
appealed to the BIA, which affirmed. This court dismissed Lin’s petition for
review. Lin v. U.S. Att’y Gen., 140 F. App’x 196 (11th Cir. 2005).
In 2010, Lin filed a motion to reopen her removal proceedings based on
China’s family-planning laws. Lin contended that she was in violation of these
laws because she had given birth to two children while in the United States. If
returned to her home in Fujian Province, China, she argued that she would be
forcibly sterilized. Among other evidence, Lin attached notices from local
authorities in Fujian indicating that she would be sterilized when she returned to
China because she had two children while overseas. Instead of relying on these
notices, however, the BIA relied on the 2007 State Department Country Report
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that stated Fujian Province does not count foreign-born children who are not
registered as permanent residents for purposes of enforcing the family-planning
laws. The BIA accordingly found that Lin failed to demonstrate that she would
face forcible sterilization and denied the motion to reopen. Lin did not seek
review of that order.
In 2011, Lin filed a second motion to reopen.1 The BIA denied the motion
because the evidence showed that only parents of children born in China were
forcibly sterilized. This is Lin’s petition for review.
II.
We review the BIA’s decision not to reopen immigration proceedings for an
abuse of discretion. Ali v. U.S. Att’y Gen., 443 F.3d 804, 808 (11th Cir. 2006).
We will only find that the BIA has abused its discretion if its decision was
arbitrary or capricious. Id. The BIA’s factual findings are reviewed for
substantial evidence: we must affirm them if supported by “reasonable,
substantial, and probative evidence on the record considered as a whole.” Al
Najjar v. Ashcroft, 257 F.3d 1262, 1283-84 (11th Cir. 2001) (internal quotation
1
At the same time, Lin also filed a motion to reconsider the BIA’s denial of her first
motion to reopen. Because Lin fails to argue that the BIA erred in denying the motion to
reconsider, however, she has abandoned that issue. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226,
1228 n.2 (11th Cir. 2005). We review only the BIA’s denial of the second motion to reopen.
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marks omitted).
Generally, an alien may file only one motion to reopen, which must be filed
within 90 days of the final removal order. 8 C.F.R. § 1003.23(b)(1). To overcome
these limitations, Lin was required to show changed conditions in China with
material evidence that was previously unavailable. See id. § 1003.23(b)(4)(i); Li v.
U.S. Att’y Gen., 488 F.3d 1371, 1374-75 (11th Cir. 2007).
Lin argues that the BIA acted arbitrarily and capriciously by concluding
that, because it only referred to parents of children born in China, the evidence she
presented with her second motion to reopen did not establish changed country
conditions. In Li, we rejected the distinction drawn by the BIA between children
born in China and those born elsewhere when there was no evidence in the record
to support it. 488 F.3d at 1376. But here, the 2007 State Department Country
Report supported the BIA’s finding because the Report shows the local and
national governments make the same distinction. The Report indicates that
children born abroad are not counted for family-planning purposes if they are not
registered as permanent residents of China and that U.S. officials were not aware
of any national or local policy mandating the sterilization of a parent returning to
China with children born abroad. And the BIA was entitled to rely heavily on this
Report to determine country conditions. Reyes-Sanchez v. U.S. Att’y Gen., 369
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F.3d 1239, 1243 (11th Cir. 2004).
Lin argues the BIA’s finding was nonetheless in error because the notices
from local family-planning authorities in her province she filed in support of her
first motion to reopen compel the conclusion that she would be sterilized even
though her children were born overseas. But Lin could not, and did not, rely on
these notices in the second motion to reopen because they were not previously
unavailable. See Li, 488 F.3d at 1374-75. In fact, she relied on them previously.
The only previously unavailable evidence Lin presented with her second motion
does not address whether the conditions in China have changed for parents of
children born abroad.
The 2007 State Department Country Report provides substantial evidence to
support the BIA’s finding that Lin had failed to show that the conditions had
materially changed in China’s Fujian Province. Consequently, we cannot say the
BIA abused its discretion in denying Lin’s second motion to reopen.2
PETITION DENIED.
2
Because the BIA did not abuse its discretion in denying the motion to reopen, we need
not decide whether Lin established a prima facie case for relief. See Al Najjar, 257 F.3d at 1302.
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