Jun Li Xiao v. U.S. Attorney General , 219 F. App'x 862 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
February 28, 2007
No. 06-14431 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A70-892-979
JUN LI XIAO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(February 28, 2007)
Before TJOFLAT, HULL and WILSON, Circuit Judges.
PER CURIAM:
Jun Li Xiao (“Xiao”), a native and citizen of China, appeals the Board of
Immigration Appeals’ (“BIA”) order, affirming the Immigration Judge’s (“IJ”)
denial of his motion to reopen, which was filed over six years after he was ordered
removed in absentia. Upon review, we deny Xiao’s petition.
BACKGROUND
Xiao filed an asylum application on July 5, 1993, alleging that he had been
threatened by the Chinese government because of his participation in the 1989
student movement for democracy. The Immigration and Naturalization Service
(“INS”) served a Notice to Appear (“NTA”) on July 27, 1998 charging Xiao with
being an alien present in the United States who was not admitted or paroled, in
violation of INA § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i). On August 5,
1998, the INS issued a notice to Xiao by mail, notifying him that his removal
hearing would take place on July 8, 1999. Xiao was not present at his removal
hearing, and on July 9, 1999, the IJ ordered him removed in absentia.
On November 15, 2005, Xiao filed a motion to reopen, arguing that he had a
valid claim for asylum based on his well-founded fear of persecution because of
the birth of his children in the United States and the coercive family planning laws
in China. Xiao argued to the IJ that his case should be reopened because of his
changed circumstances, namely the birth of his children in the United States.
On January 6, 2006, the IJ denied the motion, finding that no substantial
grounds warranted that the motion be granted, and that the motion was time-barred.
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On February 6, 2006, Xiao appealed the IJ’s decision to the BIA, arguing that the
IJ erred because Xiao could establish a well-founded fear of persecution based on
the birth of his children. Xiao argued in his supporting brief that the birth of his
second and third child should have entitled him to reopen his case.
On July 20, 2006, the BIA issued a decision, denying Xiao’s motion to
reopen and dismissing his appeal. The BIA stated that Xiao failed to submit
evidence supporting his contention that he had a well-founded fear of persecution
based on the birth-control policy in China. The BIA stated that the birth of Xiao’s
children related only to his change in personal circumstances and did not constitute
a change in circumstances in China that would have created an exception to the
time period for filing a motion to reopen. The BIA affirmed the IJ’s ruling that the
motion to reopen was untimely and found that reopening his proceedings was not
warranted. Xiao filed this petition for review.
STANDARD OF REVIEW
When the BIA issues a decision, we review only that decision, except to the
extent that the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257
F.3d 1262, 1284 (11th Cir. 2001). In this case, the BIA issued its own decision,
and we review only the BIA’s decision. We review the denial of a motion to
reopen for an abuse of discretion. Lonyem v. U.S. Att’y Gen., 352 F.3d 1338, 1340
(11th Cir. 2003). The BIA abuses its discretion when it reaches its decision “in an
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arbitrary or irrational manner.” Gomez-Gomez v. INS, 681 F.2d 1347, 1349 (11th
Cir. 1982).
DISCUSSION
Once Xiao was ordered removed in absentia, he had two avenues of relief
through which he could move to have his proceedings reopened. Xiao could have
moved to reopen his proceedings to request that the removal order be rescinded
pursuant to 8 U.S.C. § 1229a(b)(5)(C).1 However, Xiao moved to reopen his
proceedings based on new evidence pursuant to 8 U.S.C § 1229a(c)(7)(B).
Ordinarily, an alien must file a motion to reopen based on new evidence
within 90 days of the entry of a final order of removal. 8 U.S.C. §
1229a(c)(7)(C)(i). An exception to the 90-day rule exists if, inter alia, the alien is
reapplying for asylum and withholding of removal “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). Xiao argues that even though his motion to reopen was filed six
years after the removal order was entered, his recent marriage and the birth of his
children in the United States constitute changed country conditions that should
1
While Xiao stated in his affidavit to the IJ that he did not appear at his removal hearing
because he did not receive notice of the hearing, Xiao did not challenge the order finding him
removable, which was entered in absentia.
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allow him to file a motion to reopen at any time.
Motions to reopen must state the new facts that will be proven at a hearing if
the motion is granted, and must be supported by affidavits or other evidentiary
material. 8 U.S.C. § 1229a(c)(7)(B). 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). The BIA may deny a motion to reopen if: (1) the movant did not
establish a prima facie case for the underlying substantive relief; (2) the movant
did not introduce previously unavailable material evidence; and (3) the movant,
despite being eligible, is not entitled to the discretionary grant of relief. Al Najjar
v. Ashcroft, 257 F.3d 1262, 1302 (11th Cir. 2001).
We find that the BIA did not abuse its discretion in denying Xiao’s motion
to reopen. The BIA found that Xiao did not submit any documents or evidence to
support his contention that he had a well-founded fear that he would be persecuted
if deported to China because of the birth of his children. Furthermore, the BIA
found that Xiao did not demonstrate any changed circumstances arising out of his
country of nationality. The fact that Xiao married and had children that were born
in the United States is not a change in circumstances arising out of the People’s
Republic of China. See Wang v. BIA, 437 F.3d 270, 273 (2d Cir. 2006) (holding
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that the birth of children in the United States is evidence of “changed personal
circumstances, as opposed to changed conditions in China”). Accordingly, the
BIA did not err in finding that Xiao had not demonstrated a well-founded fear of
persecution and that Xiao’s motion was untimely in that it did not fall within the
“changed circumstances” exception to the 90-day rule.
PETITION DENIED.
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