Yu Chun Lian v. Mukasey

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 30, 2008
No. 07-60754
Summary Calendar Charles R. Fulbruge III
Clerk
YU CHUN LIAN
Petitioner
v.
MICHAEL B MUKASEY, U S ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A76 505 480
Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Yu Chun Lian, a native and citizen of China, was ordered removed in
absentia after he failed to appear at a 1999 removal hearing. In 2005, Lian filed
a second motion to reopen the 1999 removal order. In his petition for review,
Lian argues that the Board of Immigration Appeals (BIA) abused its discretion
by dismissing his appeal from the immigration judge’s (IJ’s) order denying that
motion. Lian does not dispute that his motion to reopen is his second and that
it is facially untimely, but instead argues that the “ordinary limits on filing a
*
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should not be published and is not precedent except under the limited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.
No. 07-60754
motion to reopen are not implicated” in his case because his motion was based
on new and material evidence establishing changed country conditions in China.
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). The denial of the motion is
reviewed for an abuse of discretion, and the factual findings are review for
substantial evidence. Id.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 hearing.” See 8 C.F.R. § 1003.2(c)(3)(ii); 8 C.F.R.
§ 1003.23(b)(4)(ii).
Lian has not shown that the BIA failed to consider the State Department
Report on Country Conditions. Rather, the BIA found that the documentary
evidence submitted by Lian, including the Country Report, reflected no change
in the conditions in China and that the evidence did not demonstrate that the
Chinese Government had a national policy of requiring forced sterilization of
parents who return with a second child born outside of China. See In re J-W-S,
24 I. & N. Dec. 185, 192 (BIA 2007). We decline to address Lian’s argument that
he is eligible for the underlying substantive relief of asylum, the withholding of
removal, and protection under the Convention Against Torture. See INS v.
Orlando Ventura, 537 U.S. 12, 16-17 (2002).
PETITION DENIED.
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