Xing Wang v. Eric Holder, Jr. ( 2013 )

Case: 12-60573 Document: 00512295846 Page: 1 Date Filed: 07/03/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 3, 2013
No. 12-60573
Summary Calendar Lyle W. Cayce
Clerk
XING HAI WANG, also known as Xin Hai Wang,
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. A070 852 229
Before JOLLY, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Xing Hai Wang, a native and citizen of China, petitions for review of the
decision of the Board of Immigration Appeals (BIA) denying his third motion to
reopen. Wang filed a motion to reopen based on what he contended was newly
discovered material evidence and changed country conditions in China regarding
the persecution of Christians. The BIA denied the motion on the grounds that
Wang failed to show that some of the evidence was previously unavailable and
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-60573
that the evidence established prima facie eligibility for relief from the removal
order and changed country conditions.
We may sua sponte raise the exhaustion requirement because failure to
exhaust deprives us of jurisdiction. Omari v. Holder, 562 F.3d 314, 319 (5th Cir.
2009). An alien must exhaust all issues for which an administrative remedy is
available to the alien as of right. 8 U.S.C. § 1252(d)(1); Omari, 562 F.3d at 318-
19.
Wang contends that the BIA applied the wrong legal standard to his
motion to reopen. This new issue arose from an alleged legal error in the BIA’s
decision itself, which Wang could have brought to the BIA’s attention by filing
a motion for reconsideration. See 8 C.F.R. § 1003.2(b). Wang’s failure to exhaust
this issue before the BIA is a jurisdictional bar to our review of the issue. See
Omari, 562 F.3d at 319-21.
Also, Wang contends that the BIA erroneously found that only religious
leaders face arrest in China, that this was the only factual finding the BIA made
in support of its decision, and that remand is therefore required for the BIA to
“meaningfully evaluate the evidence.” In Abdel-Masieh v. INS, 73 F.3d 579, 585,
587 (5th Cir. 1996), a case on which Wang relies, we concluded that the BIA had
failed to address the relevant evidence and vacated and remanded the BIA’s
decision for reconsideration. To the extent that Wang contends that the BIA
made the same error in this case, his failure to exhaust this issue before the BIA
is a jurisdictional bar to our review of the issue. See Omari, 562 F.3d at 319-21.
Further, Wang argues that the BIA’s decision is not based on substantial
evidence because it is predicated on the BIA’s erroneous finding that only
religious leaders are subject to arrest. To the extent that he is arguing that the
BIA abused its discretion by denying his motion to reopen, he has failed to make
this showing. See Zhao v. Gonzales, 404 F.3d 295, 303-04 (5th Cir. 2005). The
BIA’s finding that religious leaders are subject to arrest and church members
are subject to harassment does not necessarily equate to a finding that church
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No. 12-60573
members are not subject to arrest or that harassment excludes arrest.
Additionally, Wang does not argue, as he did in his motion to reopen, that the
evidence in his motion to reopen was previously unavailable, demonstrates that
religious persecution in China has changed or worsened since his merits hearing,
and establishes his prima facie eligibility for relief from the removal order. Cf.
8 U.S.C. § 1229a(c)(7)(C)(ii); § 1003.2(c)(3)(ii); INS v. Abudu, 485 U.S. 94, 104
(1988); In re S-Y-G, 24 I. & N. Dec. 247, 253 (BIA 2007).
Wang’s petition for review is DISMISSED in part for lack of jurisdiction
and DENIED in part.
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