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Xzan Song Dong v. U.S. Attorney General ( 2013 )


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  •                Case: 12-13922       Date Filed: 02/13/2013     Page: 1 of 6
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 12-13922
    Non-Argument Calendar
    ________________________
    Agency No. A098-714-837
    XZAN SONG DONG,
    Petitioner,
    versus
    US ATTORNEY GENERAL,
    Respondent.
    ________________________
    Petition for Review of a Decision of the
    Board of Immigration Appeals
    ________________________
    (February 13, 2013)
    Before TJOFLAT, CARNES and MARTIN, Circuit Judges.
    PER CURIAM:
    On April 29, 2008, the Board of Immigration Appeals (“BIA”) dismissed Petitioner Xzan
    Song Dong’s appeal of the decision of the Immigration Judge
    Case: 12-13922       Date Filed: 02/13/2013        Page: 2 of 6
    (“IJ”) denying his application for asylum, withholding of removal, and relief under
    the Convention Against Torture—all based on Petitioner’s alleged practice of
    Falun Gong—and ordering his removal to China pursuant to the Immigration and
    Nationality Act (“INA”) § 212(a)(6)(A)(i), 
    8 U.S.C. § 1182
    (a)(6)(A)(i), as an alien
    present in the United States without admission or parole. 1 Petitioner did not
    petition this court to review the BIA’s decision.
    On October 24, 2011, almost three years after these removal proceedings
    had run their course, Petitioner filed an untimely motion to reopen with the BIA,
    alleging that changed country conditions in China exempted his motion from the
    filing deadline. He claimed that he been participating in a pro-democracy
    organization, the Central Committee of the Party for Freedom and Democracy
    (“CCPFDC”), since December 2010, that China persecutes individuals “link[ed]
    with democratic organizations such as the CCPFDC,” and that the conditions had
    changed in China for members of the CCPFDC. Consequently, if returned to
    China, he would be subject to imprisonment or other serious punishment. In
    support of his motion to reopen, he submitted documentary evidence including,
    inter alia, an unsworn affidavit of the alleged chairman of the CCPFDC, who
    1
    The IJ denied his application based on a finding that Petitioner was not credible and that, even
    if he were credible, his circumstances did not provide the basis for asylum.
    2
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    stated that he was an active member of the organization and that the Chinese
    government had “paid attention” to his political activity while in the United States.
    The BIA denied Petitioner’s motion on June 28, 2012. First, the BIA noted
    that Petitioner’s recent decision to join the CCPFDC constituted a change in
    personal circumstances, not an exception to the requirements of filing a motion to
    reopen. Second, Petitioner’s evidence showed that China had considered the
    CCPFDC an “enemy organization” since 2002, five years before his removal
    hearing before the IJ. Moreover, his evidence failed to show any material increase
    in arrests for political dissidents in general and demonstrated at best “that the
    Chinese government remained relatively consistent in its policies regarding
    [political dissidents].”
    Petitioner now seeks review of the BIA’s decision. He argues that the BIA
    erred in finding that he did not demonstrate changed country conditions in China,
    that country conditions there have changed since his removal proceedings ended
    because the Chinese authorities are aware, or are likely to become aware, of his
    personal participation in the CCPFDC while in the United States, and that his new
    evidence established prima facie eligibility for asylum by demonstrating his
    well-founded fear of future persecution on account of his political opinion.
    We review the denial of a motion to reopen for an abuse of discretion. Jiang
    v. U.S. Att’y Gen., 
    568 F.3d 1252
    , 1256 (11th Cir. 2009). Our review is limited to
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    Case: 12-13922     Date Filed: 02/13/2013    Page: 4 of 6
    determining whether the BIA exercised its discretion in an arbitrary or capricious
    manner. 
    Id.
     Generally, motions to reopen are disfavored. 
    Id.
    A party may only file one motion to reopen removal proceedings, and that
    motion “shall state the new facts that will be proven at a hearing to be held if the
    motion is granted, and shall be supported by affidavits or other evidentiary
    material.” INA § 240(c)(7)(A)-(B), 8 U.S.C. § 1229a(c)(7)(A)-(B). Under
    8 U.S.C. § 1229a(c)(7)(C)(i), a “motion to reopen shall be filed within 90 days of
    the date of entry of a final administrative order of removal,” subject to certain
    exceptions. INA § 240(c)(7)(C)(i), 8 U.S.C. § 1229a(c)(7)(C)(i). The 90-day
    period for filing a motion to reopen is jurisdictional and mandatory. Abdi v. U.S.
    Att’y Gen., 
    430 F.3d 1148
    , 1150 (11th Cir. 2005); but see Ruiz-Turcios v. U.S.
    Att’y Gen., 
    700 F.3d 1270
    , 1272 & n.1 (11th Cir. 2012) (acknowledging questions
    about whether the pertinent language in Abdi was dicta or a holding, but declining
    to resolve the question).
    An exception to the time and number limit of motions to reopen applies if
    the motion to reopen is for the purpose of reapplying for relief “based on changed
    circumstances arising in the country of nationality or in the country to which
    deportation has been ordered, if such evidence is material and was not available
    and could not have been discovered or presented at the previous hearing.” 
    8 C.F.R. § 1003.2
    (c)(3)(ii); see INA § 240(c)(7)(C)(ii), 8 U.S.C.
    4
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    § 1229a(c)(7)(C)(ii). A change in personal circumstances, however, does not
    authorize the untimely filing of a motion to reopen. See Jiang, 
    568 F.3d at 1258
    (noting that changed personal circumstances do not meet the standard for a motion
    to reopen).
    At a minimum, the BIA may deny a motion to reopen on the following three
    grounds: (1) failure to establish a prima facie case; (2) failure to introduce
    evidence that was material and previously unavailable; or (3) a determination that
    an alien is not entitled to a favorable exercise of discretion despite statutory
    eligibility for relief. Al Najjar v. Ashcroft, 
    257 F.3d 1262
    , 1302 (11th Cir. 2001).
    The BIA is not required to discuss in its opinion every piece of evidence
    presented. Tan v. U.S. Att’y Gen., 
    446 F.3d 1369
    , 1374 (11th Cir. 2006). 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.” 
    Id.
     (citation omitted).
    Rather, 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.
     (citation omitted). The BIA is entitled to
    discount documents that have not been authenticated. Kazemzadeh v. U.S. Att’y
    Gen., 
    577 F.3d 1341
    , 1353 (11th Cir. 2009). The BIA has held that letters from
    interested witnesses, including relatives and friends who are not subject to cross-
    5
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    examination, may be of limited probative value. See Matter of H-L-H- & Z-Y-Z-,
    
    25 I. & N. Dec. 209
    , 215 (BIA 2010), abrogated on other grounds by Huang v.
    Holder, 
    677 F.3d 130
     (2d Cir. 2012). The BIA has stated that the U.S. State
    Department reports on country conditions are highly probative evidence and
    usually the best source of information on conditions in foreign countries, and thus
    accorded “special weight.” 
    Id. at 213
     (citation omitted).
    We find no merit in Petitioner’s petition for review. The BIA did not abuse
    its discretion by denying his motion to reopen because his motion was untimely
    and he failed to establish changed country conditions in China with respect to the
    treatment of members of the pro-democracy organization, CCPFDC, or others
    similarly situated to himself. The BIA properly determined that his recent
    membership and participation in a political organization represented a change in
    his personal circumstances, and did not establish changed country conditions. And
    it did not abuse its discretion in discounting the probative value of an affidavit
    submitted in support of Petitioner’s motion when the affidavit was of an interested
    party who was not subjected to cross-examination, was not made under oath, and
    was not corroborated by independent evidence.
    PETITION DENIED.
    6
    

Document Info

Docket Number: 12-13922

Judges: Tjoflat, Carnes, Martin

Filed Date: 2/13/2013

Precedential Status: Non-Precedential

Modified Date: 11/6/2024