Jia Zhen Chen v. U.S. Attorney General , 349 F. App'x 436 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Oct. 16, 2009
No. 09-11469 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A070-885-741
JIA ZHEN CHEN,
a.k.a. Chen JiaZhen,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(October 16, 2009)
Before TJOFLAT, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Jia Zhen Chen is a native and citizen of China. In July 2002, the Board of
Immigration Appeals (“BIA”) affirmed the decision of an Immigration Judge (“IJ”)
denying Chen’s application for asylum, withholding of removal under the
Immigration and Nationality Act (“INA”), and relief under the U.N. Convention
Against Torture (“CAT”) and ordering his deportation. In August 2008, Chen
moved the BIA to reopen and a motion to stay deportation proceedings pending the
adjudication of his motion to reopen. The BIA denied his motion to reopen. Chen
now petitions this court for review of the BIA’s decision.
We review the denial of a motion to reopen for an abuse of discretion. Anin
v. Reno, 188 F.3d 1273, 1276 (11th Cir. 1999). 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.” Garcia-Mir v.
Smith, 766 F.2d 1478, 1490 (11th Cir. 1985) (quotation omitted). Motions to
reopen are disfavored, especially in a removal proceeding, “where, as a general
matter, every delay works to the advantage of the deportable alien who wishes
merely to remain in the United States.” INS v. Doherty, 502 U.S. 314, 323, 112
S. Ct. 719, 724-25, 116 L. Ed. 2d 823 (1992).
Generally, an alien may file only one motion to reopen and that motion must
be filed no later than 90 days after the date on which the final administrative
decision was rendered in the proceeding sought to be reopened. 8 C.F.R.
§ 1003.2(c)(2); INA § 240(c)(7)(A) and (C)(i), 8 U.S.C. § 1229a(c)(7)(A) and
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(C)(i). This 90-day requirement is “mandatory and jurisdictional, and, therefore, it
is not subject to equitable tolling.” Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1150
(11th Cir. 2005). However, the 90-day deadline does not apply if the motion is
based on evidence of changed country conditions in the home country that could
not have been produced at the previous hearing. 8 C.F.R. § 1003.2(c)(3)(ii); INA
§ 240(c)(7)(C)(ii), 8 U.S.C. §1229a(c)(7)(C)(ii). To meet this exception, a movant
must show material evidence that was not available and could not have been
discovered or presented at the previous hearing. Id. An alien who attempts to
show that the evidence is material bears a heavy burden and must present evidence
that satisfies the BIA that, if the proceedings were reopened, the new evidence
likely would change the result in the case. Ali v. U.S. Att’y Gen., 443 F.3d 804,
813 (11th Cir. 2006). “[C]hanged personal circumstances do not meet the standard
for a petition to reopen.” Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1258 (11th Cir.
2009). It is within the BIA’s discretion
to deny a motion to reopen for at least three reasons: 1) failure to
establish a prima facie case of eligibility for asylum or withholding of
removal; 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.
Li v.U.S. Att’y Gen., 488 F.3d 1371, 1374-75 (11th Cir. 2007) (quotation and
alteration omitted).
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Chen based his asylum application, which he filed in 1993,1 on his violation
of China’s one-child policy. He based his motion to reopen on an entirely different
ground – his Christian religion and allegations of China’s worsening treatment of
Christians. He concedes that his motion to reopen was untimely, but argues that it
should have been granted because he presented evidence of a material change in
country conditions regarding China’s treatment of Christians since he filed his
asylum application. The BIA was not convinced and therefore denied his motion
to reopen. We find no abuse of discretion in the BIA’s ruling and therefore deny
Chen’s petition.
PETITION DENIED.
1
Chen unlawfully entered the United States in 1990 somewhere along the Mexican
border.
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