You Li v. Eric Holder, Jr. , 435 F. App'x 396 ( 2011 )

Case: 10-60801 Document: 00511561422 Page: 1 Date Filed: 08/04/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 4, 2011
No. 10-60801
Summary Calendar Lyle W. Cayce
Clerk
YOU BO LI,
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. A073 577 666
Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
You Bo Li, a native and citizen of China, was ordered deported in absentia
after he failed to appear at a 1997 deportation hearing. In 2008, he filed a second
motion to reopen his deportation proceedings. Li – who, with his Chinese-citizen
wife, has had three children in the United States since he was ordered deported
– claims to have new evidence that he will be forcibly sterilized if he returns to
China. In his petition for review, Li argues that the Board of Immigration
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 10-60801
Appeals (BIA) abused its discretion by dismissing his appeal from the
immigration judge’s (IJ’s) order denying the motion to reopen.
This court has jurisdiction to review the denial of an untimely motion to
reopen based on changed circumstances in the alien’s home country. Panjwani
v. Gonzales, 401 F.3d 626, 632 (5th Cir. 2005). We review the denial of a motion
to reopen “under a highly deferential abuse-of-discretion standard,” upholding
the Board’s decision so long as it is not capricious, racially invidious, without
foundation in the evidence, or otherwise so irrational 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).
The numerical and time limitations on motions to reopen do not apply
where the motion 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 proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see 8
C.F.R. § 1003.2(c)(3)(ii).
Li does not dispute that his motion to reopen is his second and that it is
facially untimely. Instead, he argues that the IJ and BIA abused their discretion
in determining that he had not shown changed country conditions sufficient to
authorize consideration of his motion to reopen. He argues that the IJ abused
her discretion by failing to adequately consider his arguments and evidence and
that the BIA compounded this error. Additionally, Li contends that the BIA
erred in summarily dismissing his criticisms of the United States Department
of State’s 2007 Asylum Profile for China (2007 Asylum Profile). He also
challenges the BIA’s giving minimal weight to certain documents he submitted
with his motion to reopen on the basis that the documents were not notarized or
authenticated and were obtained for purposes of the motion to reopen.
Li, however, has not shown that the BIA abused its discretion in
determining that the evidence he submitted did not show changed circumstances
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No. 10-60801
in China. Rather, the record demonstrates that the BIA considered the
admissible evidence and his arguments, including his challenge to the reliability
to the 2007 Asylum Profile, and determined, inter alia, that the evidence did not
show changed country conditions regarding the treatment of violators of the
family planning law or Chinese citizens returning to the country with United
States-born children. Li also has not shown that the BIA abused its discretion
in giving minimal weight to unauthenticated notices from village family
planning committees regarding Li and his wife, unauthenticated certificates of
sterilization of alleged violators of the family planning law, and letters from such
alleged violators. See 8 C.F.R. § 287.6(b)(1).
Li additionally argues in his petition that he should not be precluded from
reopening his deportation proceedings based on a change in the enforcement of
China’s family planning policy. In his brief before the BIA, he argued only that
he would be subject to sterilization based on the family planning policy. He did
not argue to the BIA that there was a change in procedure, i.e., that enforcement
of the policy had changed or increased since the order of removal. As this issue
is unexhausted, we lack jurisdiction to consider it. See Omari v. Holder, 562
F.3d 314, 317-19 (5th Cir. 2009).
DISMISSED IN PART FOR LACK OF JURISDICTION; DENIED IN
PART.
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