Bi Ying Lian v. U.S. Attorney General , 546 F. App'x 917 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_______________________
No. 12-16149
Non-Argument Calendar
_______________________
Agency No. A095-709-781
BI YING LIAN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
_______________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_______________________
(December 6, 2013)
Before MARCUS, JORDAN, and DUBINA, Circuit Judges.
PER CURIAM:
Bi Ying Lian, a native and citizen of China, petitions for review of an order
of the Board of Immigration Appeals denying her motion to reopen her removal
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proceedings based on changed country conditions. More than four years after her
final order of removal, Ms. Lian filed a motion to reopen based on changed
country conditions. After converting to Christianity in 2011, she argued that she
could not return to China based on that country’s persecution of unregistered
Christian churches. The BIA declined to reopen her proceedings sua sponte and
determined that she failed to show changed country conditions sufficient to excuse
her untimely motion.
On appeal, Ms. Lian acknowledges that “motion[s] to reopen [must] be filed
within 90 days of the date of entry of a final administrative order of removal.” 8
U.S.C. § 1229a(c)(7)(C)(i). She, however, argues that the BIA should have
considered her untimely motion, which was filed more than four years after the
entry of her removal order, by exercising its sua sponte authority to reopen cases
under 8 C.F.R. § 1003.2(a). In the alternative, she argues that the BIA abused its
discretion in failing to consider her motion under the changed circumstances
exception, which provides that “[t]here is no time limit on the filing of a motion to
reopen” if the motion “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).
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After review of the administrative record and consideration of the parties’
briefs, we dismiss the petition in part and deny the petition in part.
I
Ms. Lian acknowledges that binding circuit precedent prohibits us from
reaching her challenge to the BIA’s refusal to reopen her proceedings sua sponte
under 8 C.F.R. § 1003.2(a). See Lenis v. U.S. Att’y Gen., 525 F.3d 1291, 1293
(11th Cir. 2008) (holding that this Court lacks jurisdiction to review decisions of
the BIA refusing to reopen immigration proceedings sua sponte). Nonetheless,
Ms. Lian urges us to overrule Lenis as “improperly reasoned in light of the
Supreme Court’s decision in Kucana [v. Holder, 558 U.S. 233 (2010)].” Br. of
Pet’r at 19. Yet she plainly admits, as she must, that “Kucana does not compel the
conclusion that Lenis . . . should be overruled.” Br. for Pet’r at 24. Indeed, not
only did the Supreme Court in Kucana address a different statute, 8 U.S.C. §
1252(a)(2)(B)(ii), than the one at issue here, but the Court also specifically
“express[ed] no opinion on whether federal courts may review the Board’s
decision not to reopen removal proceedings sua sponte.” Kucana, 558 U.S. at 251
n.18. Her admission is thus fatal to her argument on appeal. Because neither this
Court sitting en banc, nor the Supreme Court’s decision in Kucana, has overruled
Lenis, we are bound to follow its holding. See, e.g., United States v. Vega-Castillo,
540 F.3d 1235, 1236 (11th Cir. 2008). We therefore dismiss the portion of Ms.
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Lian’s petition challenging the BIA’s refusal to exercise its sua sponte authority to
reopen the removal proceedings for lack of subject-matter jurisdiction.
II
We review the denial of a motion to reopen for an abuse of discretion,
limiting our review to whether the BIA exercised its discretion in an arbitrary or
capricious manner. See Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256 (11th Cir.
2009). Ms. Lian bears a heavy burden under this standard, as motions to reopen
removal proceedings are particularly disfavored. Id.Ms. Lian has not carried her burden. Her principal argument is that the BIA
failed to address the “voluminous materials” she submitted showing that China’s
religious persecution of unregistered Christian churches and their members had
increased since her hearing in 2006. In concluding that Ms. Lian had not shown
changed country conditions, however, the BIA was not required to specifically
address each piece of evidence. See Seck v. U.S. Att’y Gen., 663 F.3d 1356, 1364
(11th Cir. 2011) (“Where the BIA has given reasoned consideration to the petition,
and made adequate findings, we will not require that it address specifically each
claim the petitioner made or each piece of evidence the petitioner presented.”)
(internal quotation marks omitted). Nonetheless, the BIA must “consider the
issues raised and announce its decision in terms sufficient to enable a reviewing
court to perceive that it has heard and thought and not merely reacted.” Id. After a
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thorough review of the record, we find that the BIA has given reasoned
consideration to Ms. Lian’s petition and has made more than adequate findings to
support its determination that her petition was untimely.
The BIA determined—after considering the State Department’s Country
Reports and International Religious Freedom Reports, the Congressional-
Executive Commission Annual Reports, and news articles submitted by Ms.
Lian—that Ms. Lian failed to show a change in country conditions since the time
of her original hearing in 2006. Specifically, the documents presented by Ms. Lian
showed that the Chinese government’s mistreatment of unregistered Christian
groups has been a longstanding problem, and the current restrictions on religious
groups have been a continuation of the same or similar conditions that existed at
the time of Ms. Lian’s hearing. For example, these documents indicated that, at
the time of Ms. Lian’s hearing in 2006, the Chinese government was already
subjecting unregistered churches and their members to threats, repression,
harassment, detention, and, at times, physical abuse. In addition, while the more
recent reports indicated that the Chinese government has continued to repress
unregistered religious groups, they also reported that the Chinese government has
started to allow increased freedom for some of these groups and their members.
For example, the documents showed that since 2005, the Chinese government has
publicly acknowledged that family and friends have the right to meet at home for
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worship, prayer, and Bible study without being registered with the government. In
light of this evidence, the BIA did not act arbitrarily or capriciously in concluding
that Ms. Lian had not shown changed country conditions.1
Because the BIA did not abuse its discretion in denying Ms. Lian’s motion
to reopen, it is unnecessary for us to consider whether Ms. Lian established a
prima facie case for relief based on her religion. See Al Najjar v. Ashcroft, 257
F.3d 1262, 1302 (11th Cir. 2001) (“At a minimum, there are at least three
independent grounds upon which the Board may deny a motion to reopen: 1)
failure to establish a prima facie case; 2) failure to introduce evidence that was
material and previously unavailable; and 3) a determination that despite the alien’s
statutory eligibility for relief, he or she is not entitled to a favorable exercise of
discretion.”) (emphasis added).
III
Ms. Lian’s petition is dismissed insofar as it challenges the BIA’s refusal to
reopen the proceedings sua sponte, and denied insofar as it challenges the BIA’s
denial of the motion to reopen based on changed country conditions.
PETITION DISMISSED IN PART AND DENIED IN PART.
1
Ms. Lian’s conversion to Christianity in 2011does not factor into this analysis because changed
personal circumstances do not authorize the untimely filing of a motion to reopen. See Jiang,
568 F.3d at 1258.
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