Xue Xian Huang v. Holder , 358 F. App'x 587 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 30, 2009
No. 08-61108
Summary Calendar Charles R. Fulbruge III
Clerk
XUE XIAN HUANG, also known as Hsaio-Wen Chien,
Petitioner
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A77 977 927
Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
Xue Xian Huang, a native and citizen of China, petitions this court to
review the denial of her motion to reopen proceedings by the Board of
Immigration Appeals (BIA). This court has discretion to review Huang’s petition
because it seeks relief based on alleged changed circumstances in China. See
Panjwani v. Gonzales, 401 F.3d 626, 632 (5th Cir. 2005). “The BIA’s denial of a
motion to reopen is reviewed for abuse of discretion and its factual findings are
*
Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5 TH C IR. R. 47.5.4.
No. 08-61108
reviewed for substantial evidence.” Id. That discretion will not be disturbed
unless the decision is “capricious, racially invidious, utterly without foundation
in the evidence, or otherwise so aberrational that it is arbitrary rather than the
result of any perceptible rational approach.” Pritchett v. INS, 993 F.2d 80, 83
(5th Cir. 1993) (citation omitted).
Huang was required to show changed country conditions in China to
overcome the time and numeric limitations on her motion to reopen. See 8
C.F.R. § 1003.2(c)(2). Huang has not shown that the BIA failed to consider the
State Department Reports on Country Conditions and the other documents
submitted. The BIA found that the documentary evidence reflected no change
in country conditions in China. This decision is not an abuse of discretion. See
Panjwani, 401 F.3d at 632. Additionally, Huang’s assertion that she fears
forced sterilization for giving birth to two children in this country is based on
self-induced changes in her personal circumstances, not changed conditions in
China. See id. Therefore, the BIA’s denial of Huang’s motion to reopen based
on a finding that the motion was untimely and successive was not an abuse of
discretion. We decline to address Huang’s argument that she is eligible for the
underlying substantive relief of asylum, the withholding of removal, and
protection under the Convention Against Torture. Accordingly, the petition for
review is DENIED.
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