Zenmo Chen v. U.S. Attorney General

Case: 12-11545 Date Filed: 11/21/2012 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-11545
Non-Argument Calendar
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Agency No. A070-120-276
ZENMO CHEN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
llllllllllllllllllllllllllllllllllllllll Respondent.
________________________
Petitioner for Review of a Decision of the
Board of Immigration Appeals
________________________
(November 21, 2012)
Before TJOFLAT, JORDAN and ANDERSON, Circuit Judges.
PER CURIAM:
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The sole issue presented by this petition for review is whether the Board of
Immigration Appeals (“BIA”) abused its discretion in dismissing Petitioner’s
untimely and numerically-barred motion to reopen his removal proceedings based
on its conclusion that Petitioner failed to demonstrate changed circumstances that
warranted reopening those proceedings. We find no abuse of discretion and
therefore deny his petition.
On February 16, 1994, an Immigration Judge (“IJ”) ordered Petitioner
removed in absentia after he failed to appear for his deportation hearing. On July
10, 2002, Petitioner moved the BIA to reopen his removal proceedings. No appeal
was pending before the BIA, so it forwarded the motion to the IJ, who denied it as
untimely on August 26, 2002. Petitioner did not appeal the IJ’s decision.
On February 4, 2011, Petitioner filed a second motion to reopen with the IJ.
He claimed that he had recently become involved with the China Democratic Party
(“CDP”), and that the Chinese government’s “crackdown against its members has
significantly intensified” since his July 10, 2002 motion to reopen. On February
14, 2011, the IJ dismissed Petitioner’s motion to reopen because it was untimely
and numerically barred. Petitioner appealed the IJ’s decision to the BIA, and, on
February 24, 2012, it dismissed the appeal as untimely and numerically barred.
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The BIA did so after agreeing with the IJ “that [Petitioner] has not established
changed circumstances” arising in China. See 8 C.F.R. 1003.2(c)(3)(ii).
We review the BIA’s denial of a motion to reopen removal proceedings for
an abuse of discretion. Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1319 (11th Cir.
2009). Review is limited to determining whether the BIA exercised its discretion
in an arbitrary or capricious manner. Id. Motions to reopen are disfavored; the
moving party therefore bears a heavy burden to demonstrate that the new evidence
would likely change the result in the case if reopened. Id. The BIA may deny a
motion to reopen on any one of three grounds: (1) the movant failed to establish a
prima facie case for relief; (2) the movant failed to present evidence that was
material and previously unavailable; or (3) the BIA determines that, despite
eligibility for relief, the alien is not entitled to a favorable exercise of discretion.
Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256-57 (11th Cir. 2009).
An alien may only file one motion to reopen, and must do so no later than
90 days after the final order of removal. Immigration and Naturalization Act
(“INA”) § 240(c)(7)(A), (C), 8 U.S.C. § 1229a(c)(7)(A), (C); 8 C.F.R.
§ 1003.2(c)(2). The time and number limitations on motions to reopen, however,
do not apply where the motion is based upon changed country conditions arising
in the alien’s country of nationality or within the country to which removal is
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ordered. Jiang, 568 F.3d at 1256; INA § 240(c)(7)(C)(ii), 8 U.S.C.
§ 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). The alien must demonstrate that
conditions within the relevant country have changed, as a change in personal
circumstances alone will not suffice to allow an otherwise untimely and successive
motion to reopen. See Zhang, 572 F.3d at 1319.
The 2009 Human Rights Watch Report on China explained that there has
not been any significant change in the Chinese government’s policy toward
organizations that challenged the Chinese government’s control. Further, the
reports and articles submitted demonstrate that the Chinese government has been
suppressing pro-democracy political activity through arrests and imprisonments
since 1989. Specifically, the CDP was dismantled in under two years, and the
Chinese government continued to arrest CDP members from its inception in 1998
until its effective demise in 1999. Further, Petitioner’s personal experience as a
student protestor demonstrates that the Chinese government imprisoned him for
participating in the pro-democracy movement in 1989, before he arrived in the
United States and before he filed his previous motion to reopen. Because
Petitioner has failed to demonstrate changed circumstances in the treatment of
political activists in China since he filed his previous motion to reopen, the BIA
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did not abuse its discretion in dismissing his appeal. Accordingly, we deny his
petition.
PETITION DENIED.
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