Dong Xubao v. U.S. Attorney General

Filing

Opinion issued by court as to Petitioner Dong Xubao. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. Petition DENIED. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 15-13930

Date Filed: 05/23/2016

Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-13930
Non-Argument Calendar
________________________
Agency No. A088-076-315

DONG XUBAO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(May 23, 2016)
Before WILLIAM PRYOR, MARTIN and FAY, Circuit Judges.
PER CURIAM:

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Date Filed: 05/23/2016

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Xu Bao Dong seeks review of a decision by the Board of Immigration
Appeals (“BIA”) affirming the immigration judge’s (“IJ”) denial of his motion to
reopen removal proceedings. On appeal, Dong argues that the BIA and IJ abused
their discretion by denying his motion to reopen based on the finding that he failed
to establish changed conditions for members of unsanctioned Christian churches in
China. After careful review, we deny the petition.
I.
We review the denial of a motion to reopen an immigration petition for an
abuse of discretion, determining only whether the BIA exercised its discretion in
an arbitrary or capricious manner. Jiang v. U.S. Atty. Gen., 568 F.3d 1252, 1256
(11th Cir. 2009). We review only the BIA’s decision unless the BIA has expressly
adopted the IJ’s decision, which it did not do in this case. Id.
An alien may file only one motion to reopen removal proceedings, and it
must be filed no later than 90 days after the final administrative decision. 8 C.F.R.
§ 1003.23(b)(1). However, these limitations do not apply when: (1) an alien files a
motion to reopen that seeks asylum or the withholding of removal where the
alien’s life or freedom would be threatened or based on the Convention Against
Torture; (2) the motion is predicated on “changed country conditions”; and (3) the
changed conditions are material and could not have been discovered at the time of
the removal proceedings. 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R.
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§ 1003.23(b)(4)(i). “An alien who attempts to show that the evidence is material
bears a heavy burden and must present evidence that demonstrates that, if the
proceedings were opened, the new evidence would likely change the result in the
case.” Jiang, 568 F.3d at 1256–57. “An alien cannot circumvent the requirement
of changed country conditions by demonstrating only a change in [his] personal
circumstances.” Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1319 (11th Cir. 2009)
(per curiam). Even if a motion to reopen is timely, it can be denied because of a
failure to show prima facie eligibility for the relief sought, failure to introduce
previously unavailable material evidence, or because the alien is not entitled to a
further exercise of discretion. I.N.S. v. Abudu, 485 U.S. 94, 104–05, 108 S. Ct.
904, 912 (1988).
II.
Dong, a native and citizen of China, entered the United States without
inspection in 2009. The Department of Homeland Security (DHS) charged Dong
with being removable as “an alien present in the United States without being
admitted or paroled.” Dong appeared in immigration court without counsel on
June 2, 2009, and stated that he was afraid of being persecuted upon returning to
China due to his membership in an underground Christian church. The IJ informed
him that he might be eligible for asylum or withholding of removal and granted
him 28 days to prepare his application. Dong appeared in court on June 30, 2009,
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but did not submit an application for relief from removal. The IJ found that Dong
was removable and that he had abandoned his right to seek asylum. After Dong
declined to take voluntary departure, the court ordered that he be removed to
China.
On November 20, 2014, Dong filed a counseled motion to reopen based on a
change in country conditions in China. Dong conceded that the filing occurred
well after 90 days from the final administrative decision, but argued that the time
limit did not apply because he was applying for asylum or withholding of removal
based on changed country conditions in China. He alleged that the persecution of
Christians had worsened and that his recent baptism would make him a target. The
IJ denied the motion, finding that Dong did not meet his burden of establishing a
change in country conditions since 2009.
The BIA did not abuse its discretion by affirming the IJ’s denial of Dong’s
motion to reopen based on a finding that he did not show changed country
conditions. To support his claim that persecution worsened in China between 2009
and 2014, Dong attached a letter from Jiang Jian Nan, a friend and unsanctioned
church member in China. The letter, dated October 30, 2014, stated: “Due to the
fact that at an earlier time, our church was often persecuted by the police, and on
top of that, the cult organization ‘Almighty God’s’ homicide case, police have
been persecuting us even more.” However, the letter does not establish changed
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country conditions; instead, the letter describes the government’s activities
regarding one specific church. Beyond that, the letter’s statements about ongoing
persecution establish a continuation of country conditions rather than a change.
Dong also attached copies of the State Department’s Religious Freedom
Reports from 2009 and 2013 to prove changed country conditions. However, the
reports show that conditions largely remained the same. In both reports, the
amount of official interference with unsanctioned churches varied widely
depending on location. The 2013 report noted that “some house church members”
felt that they had “more freedom than in the past to conduct religious services,” as
long as they did so in private. In his motion to reopen, Dong argued that his faith
requires that he proselytize, making the requirement to remain private a particular
burden on his religious freedom. However, the reports indicate no change in
country conditions in this regard since three members of a house church received
one-year retraining-through-labor sentences for “illegal proselytizing” in 2008,
prior to Dong’s initial hearing.
Because Dong failed to show materially changed country conditions, his
motion was untimely and he was not entitled to reopen his removal proceedings.
The BIA did not abuse its discretion.
PETITION DENIED.

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