Chun Yang v. Jefferson Sessions, III ( 2018 )

Case: 17-60755 Document: 00514655999 Page: 1 Date Filed: 09/25/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 17-60755 September 25, 2018
Summary Calendar
Lyle W. Cayce
Clerk
CHUN LIN YANG,
Petitioner
v.
JEFFERSON B. SESSIONS, III, U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A097 645 703
Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
Chun Lin Yang, a native and citizen of China, petitions this court for
review of the decision of the Board of Immigration Appeals (BIA) denying her
third motion to reopen. She argues that the BIA abused its discretion in
denying the motion and erred in concluding that she had not demonstrated
changed country conditions in China. Yang further argues that the BIA erred
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 17-60755 Document: 00514655999 Page: 2 Date Filed: 09/25/2018
No. 17-60755
in determining that she had not made a showing of prima facie eligibility for
relief from removal.
This court has jurisdiction to review the denial of a motion to reopen
based on changed country conditions. See Panjwani v. Gonzales, 401 F.3d 626,
632 (5th Cir. 2005). Review is under a highly deferential abuse of discretion
standard, and the decision will be upheld as long as it is “not 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.” Manzano-Garcia v. Gonzales, 413 F.3d 462, 469 (5th Cir.
2005) (internal quotation marks and citation omitted).
The BIA has the authority to reopen deportation proceedings beyond the
90-day limitation period if the request for relief is “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). To establish the requisite changed
country conditions, Yang had to present evidence that compared, in a
meaningful way, conditions in China in September 2006, when her removal
hearing was held, with conditions in May 2017, when she filed her motion to
reopen. See Ramos-Lopez v. Lynch, 823 F.3d 1024, 1026 (5th Cir. 2016);
Panjwani, 401 F.3d at 633.
Neither Yang’s motion to reopen nor her petition for review compares, in
any meaningful way, the conditions in China at the time of her removal
hearing in September 2006 with conditions in May 2017, at the time she sought
reopening, with respect to her assertion that she will be punished by China for
having used a smuggler to leave the country illegally and for having applied
for asylum in the United States. See Ramos-Lopez, 823 F.3d at 1026;
2
Case: 17-60755 Document: 00514655999 Page: 3 Date Filed: 09/25/2018
No. 17-60755
Panjwani, 401 F.3d at 633. Inasmuch as Yang now seeks to assert explicitly
that she will be treated as the equivalent of a political dissident and subjected
to mistreatment upon her return as a result, this court lacks jurisdiction to
consider the argument. See Omari v. Holder, 562 F.3d 314, 320-21 (5th Cir.
2009).
A review of the record confirms that substantial evidence supports the
BIA’s finding that Yang’s evidence did not demonstrate a material change in
country conditions in China warranting reopening, and Yang thus fails to show
that the BIA’s decision was abuse of discretion. See Panjawani, 401 F.3d at
632; see also Manzano-Garcia, 413 F.3d at 469. Because Yang does not show
that the BIA abused its discretion in determining that she failed to show
materially changed country conditions in China, this court need not examine
her remaining arguments challenging the BIA’s conclusion that she had not
made a prima facie showing of eligibility for relief from removal. See Ramos-
Lopez, 823 F.3d at 1026; Ogbemudia v. INS, 988 F.2d 595, 601 (5th Cir. 1993).
Accordingly, the petition for review is DENIED.
3