Xia Chen v. U.S. Attorney General , 533 F. App'x 905 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-15805
Non-Argument Calendar
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Agency No. A079-400-388
XIA CHEN,
Petitioner,
versus
US ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
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(August 13, 2013)
Before MARCUS, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
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Xia Chen, a native and citizen of China, petitions for review of the denial of
her motion to reopen and to stay her removal from the United States based on a
change in country conditions. 8 U.S.C. § 1229a(c)(7)(C)(ii). We deny the petition.
In 2001, Chen entered the United States without a valid entry document.
During an interview with an immigration official, Chen disclaimed membership in
any religious or political group in China and stated that a powerful businessman
had harassed her and tried to rape her after she refused to marry him. Later, Chen
applied for asylum, withholding of removal, and relief under the United Nations
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment on the grounds that she feared persecution because she had practiced
Falun Gong and she had refused to marry the son of a local police chief. See 8
U.S.C. §§ 1158(a), 1231(b)(3). At her removal hearing, Chen testified about being
arrested and imprisoned for practicing Falun Gong and then being slapped and
kicked by police officers after she refused to marry the son of the chief of police.
On September 11, 2006, the Board of Immigration Appeals affirmed the
denial of Chen’s application for asylum and other relief. The Board agreed with
the finding of the immigration judge that Chen’s allegations about being
persecuted for practicing Falun Gong were not credible. Chen filed a motion for
reconsideration, which the Board denied.
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On April 9, 2012, Chen moved to reopen and stay her removal proceedings.
Chen alleged that her motion, although untimely, was exempt from the time
limitation because she had converted to Christianity and the persecution of
unregistered Christian groups had increased in China since the close of her
removal proceedings. Chen attached to her motion copies of the 2009 Country
Report, other annual reports, and newspaper articles about the repression of one
unregistered church, Shouwang; a certificate stating that she had been baptized in
November 2011; a letter regarding her attendance and approval for membership at
the Melbourne Chinese Christian and Missionary Alliance Church; and her
affidavit averring that, if she returned to China, she was “only interested in
attending ‘underground churches.’”
The Board of Immigration Appeals denied Chen’s motion to reopen as
untimely. The Board found that Chen’s “practice of religion in the United States
reflect[ed] a change in her personal circumstances” and that her “evidence [was]
not sufficient to demonstrate that the treatment of Christians in China [had]
materially changed, that the Chinese government [was] or [would] become aware
of her newly-adopted religious practice, or that she [would] become a specific
target for persecution in China on the basis of [her] religion.” The Board
“concluded that [Chen] [h]ad not established a change in circumstances or country
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conditions . . . so as to exempt her motion from the time limitation on motions to
reopen.”
We review the denial of a motion to reopen for an abuse of discretion. Jiang
v. U.S. Att’y Gen., 568 F.3d 1252, 1256 (11th Cir. 2009). “Our review is limited
to determining whether the [Board] exercised its discretion in an arbitrary or
capricious manner.” Id. A motion to reopen must be filed within 90 days of the
final order of removal, 8 U.S.C. § 1229a(c)(7)(C)(i), but “[t]here is no time limit
on the filing of a motion . . . based on changed country circumstances arising in the
country of nationality . . . if such evidence is material and was not available and
would not have been discovered or presented at the previous hearing,” id.
§ 1229a(c)(7)(C)(ii). A movant “bears a ‘heavy burden,’ to [reopen removal
proceedings] and must ‘present evidence of such a nature that the [Board] is
satisfied that if proceedings . . . were reopened, with all attendant delays, the new
evidence offered would likely change the result in the case.’” Ali v. U.S. Att’y
Gen., 443 F.3d 804, 813 (11th Cir. 2006) (quoting In re Coelho, 20 I. & N. Dec.
464, 473 (BIA 1992)).
The Board did not abuse its discretion when it denied Chen’s motion to
reopen. Chen’s motion was untimely because it was filed more than five years
after the final order of removal, and Chen failed to offer evidence sufficient to
except her from the 90-day deadline. See 8 U.S.C. § 1229a(c)(7)(C)(i)–(ii). Chen
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could not “circumvent the requirement of changed country conditions by
demonstrating only a change in her personal circumstances” through her
conversion to Christianity. See Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1319
(11th Cir. 2009). And we cannot classify as arbitrary or capricious the finding of
the Board that Chen failed to submit material evidence of a change in conditions in
China regarding the treatment of Christians in underground churches. See Jiang,
568 F.3d at 1256. When Chen applied for asylum, she submitted a copy of the
2004 Country Report, which stated that the Chinese government had recognized
Protestantism and Catholicism, but had “sought to restrict religious practice to
government-sanctioned organizations” through requiring registration of religious
groups, closing and destroying unregistered places of worship, and detaining and
harassing members of unregistered churches. Chen’s newly-submitted evidence
did not establish that conditions in China had materially changed regarding the
treatment of Christians. The 2009 Country Report and 2009 and 2010 reports of
the Congressional-Executive Commission reports state that the government had
“continued” its practices of regulating and demolishing unregistered churches and
harassing their members.
We DENY Chen’s petition.
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