Bin Xu v. U.S. Attorney General

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 9, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 09-14552
Non-Argument Calendar
________________________
Agency No. A098-234-749
BIN XU,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(June 9, 2010)
Before HULL, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Bin Xu, a citizen of China, pro se petitions for review of the Board of

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Immigration Appeals’s (“BIA”) order (1) denying his pro se motion to reconsider
its prior decision affirming the Immigration Judge’s (“IJ”) removal order; and (2)
denying his pro se motion to reopen his removal proceedings. After review, we
dismiss in part and deny in part the petition.
I. BACKGROUND
A. Removal Proceedings
In 2003, Xu entered the United States on a nonimmigrant student visa to
attend the University of North Carolina in Charlotte (“UNCC”). In January 2005,
UNCC suspended Xu for failing to comply with academic requirements. As a
result, Xu’s student visa was terminated. In November 2006, based on the visa
termination, the Department of Homeland Security charged Xu with removability
for failing “to maintain or comply with the conditions of the nonimmigrant status
under which [he was] admitted.”
In April 2007, Xu pro se filed an application for asylum, withholding of
removal and relief under the Convention against Torture (“CAT”) in which he
claimed he feared persecution in China because, in part, he is a baptized Christian
and practices qigong, a breathing exercise that Chinese authorities would perceive
as Falun Gong. Xu’s hearing was originally scheduled for July 30, 2007. After
both Xu and the government sought a continuance, the hearing was postponed until
November 30, 2007.
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Prior to his hearing, on November 27, 2007, Xu filed two “emergency”
motions for a continuance. The first motion asserted that (1) UNCC’s academic
suspension was due to discrimination, (2) Xu had an appeal of the suspension
pending with the Department of Education’s Office of Civil Rights (“OCR”) and
(3) Xu wished to continue his removal hearing until he received a final opinion
from the OCR. The second continuance motion explained that Xu was arrested on
November 23, 2007 for second degree trespass and resisting a public officer. Xu
asked to postpone the removal hearing so he would not “risk the loss of [his]
constitutional right to a trial.”
At Xu’s November 30, 2007 removal hearing, the IJ denied Xu’s
continuance motions. After Xu testified, the IJ denied relief. The IJ denied Xu’s
asylum claim as time-barred and, alternatively, on the merits. The IJ found that Xu
was not credible as to his religious activities in the United States and failed to show
a clear probability that he would be persecuted in China. The IJ granted Xu
voluntary departure before December 31, 2007.
B. “Motion for Reconsideration” Construed as a Motion to Reopen
On December 27, 2007, Xu filed a motion styled “Motion for
Reconsideration,” in which Xu: (1) withdrew his asylum application, but requested
withholding of removal based on his religion and Falun Gong practice; (2) stated
that he was baptized at Northside Baptist Church on February 8, 2004 and
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regularly attended “house churches”; (3) argued that because his criminal case had
been continued until January 3, 2008, the IJ’s voluntary departure date of
December 31, 2007 violated his constitutional right to a trial; and (4) asked for
voluntary departure should his application be denied. Xu attached exhibits,
including (1) what appear to be pictures of Xu’s baptism; (2) a letter from World
Bible School dated August 8, 2007, stating Xu studied the Bible by mail; (3)
excerpts of the 2007 China Religious Freedom Report and the 2007 China Country
of Origin Information Report with portions relevant to “house churches”
underlined; (4) the 2007 China Profile of Asylum Claims and Country Conditions
Report with information pertaining to Falun Gong underlined; and (5) a document
showing that Xu’s criminal case was continued until January 3, 2008.
The IJ construed Xu’s “motion for reconsideration” as a motion to reopen.
The IJ denied the motion because Xu failed to show that the evidence was
previously unavailable or could not have been presented at the hearing. The IJ also
concluded that Xu had not shown a reasonable likelihood of success on the merits
to warrant reopening removal proceedings.
C. BIA Appeal and Motions to Remand
Xu pro se appealed to the BIA, challenging the IJ’s denial of his motions for
a continuance. Xu argued that the denial of his continuance requests violated his
rights to a trial and due process. In addition, Xu advised the BIA that his criminal
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case was continued until February 14, 2008 and attached a copy of the notice of his
new court date.
While his BIA appeal was pending, Xu filed three motions to remand with
the BIA. The first remand motion, filed February 25, 2008, advised the BIA that
Xu’s OCR appeal was still pending and attached an email exchange with an OCR
representative. The second remand motion, filed June 12, 2008, advised the BIA
that (1) Xu’s OCR appeal was still pending and that he would not receive a final
opinion for at least 150 days; and (2) on January 27, 2008, Xu filed an action
against UNCC in North Carolina state court asserting state law claims. Xu1
attached copies of pleadings in the state court action. The third remand motion
advised the BIA that on August 29, 2008 Xu had filed a 42 U.S.C. § 1983 action
against UNCC in federal district court. Xu attached copies of some of the district
court pleadings. All three remand motions argued that the outcome of Xu’s
removal proceedings would change if he succeeded in overturning UNCC’s
academic suspension.
On February 27, 2009, the BIA denied Xu’s appeal. The BIA concluded that
Xu’s appeal was untimely as to the IJ’s November 30, 2007 removal order, but was
timely as to the IJ’s ruling on the “motion for reconsideration.” The BIA found,
Xu stated that the UNCC defendants had failed to answer his state court complaint and1
that he had filed a motion for a default judgment.
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inter alia, that Xu’s pro se “motion for reconsideration” was “in the nature of a
motion to reopen.” The BIA upheld the IJ’s refusal to reopen the removal
proceedings because Xu had not presented any new or previously unavailable
evidence that would warrant reopening Xu’s case.
The BIA denied Xu’s three motions to remand, concluding that Xu’s “new”
evidence of his ongoing litigation relating to his UNCC suspension merely
supported arguments already made to and rejected by the IJ. As for Xu’s motions
for a continuance, the BIA agreed with the IJ that Xu had not shown good cause.
The BIA noted that there had been an adverse ruling in Xu’s state court action and
no resolution of Xu’s federal court action. Given that the IJ “was not prepared to
continue [Xu’s] case indefinitely” and “the speculative and collateral nature of” the
UNCC litigation, the BIA concluded that the IJ had not erred in denying Xu’s
requests for a continuance. The BIA declined to address Xu’s constitutional
claims, stating that it had “no jurisdiction over the constitutionality of the statutes
and regulations we administer.”
E. Motions to Reconsider and to Reopen Before the BIA
On March 30, 2009, Xu filed a motion to reconsider with the BIA in which
Xu argued, inter alia, that the BIA had erred in treating his December 27, 2007
“motion for reconsideration” as a motion to reopen and had violated his
constitutional right to a criminal trial by refusing to continue his removal
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proceedings. On May 27, 2009, Xu filed a motion to reopen with the BIA and
attached a new state court complaint filed against UNCC in March 2009. Xu2
reasserted his argument that if he prevailed against UNCC, UNCC would have to
reinstate him as a student and he would not be removable.
In an August 13, 2009 order, the BIA denied both motions. The BIA
concluded it had properly treated Xu’s December 27, 2009 “motion for
reconsideration” as a motion to reopen. As to the denial of Xu’s request for a
continuance, the BIA concluded that Xu’s constitutional claim was moot because it
was apparent Xu was able to attend the January 3, 2008 criminal hearing.
Alternatively, the BIA concluded that Xu’s arguments lacked merit because Xu’s
pending criminal charges and UNCC civil litigation did not provide proper bases
for giving Xu additional time to remain in the United States. Xu petitioned this
Court for review.
II. DISCUSSION
A. Appellate Jurisdiction
On September 8, 2009, Xu filed a petition for review of the BIA’s August
13, 2009 order. However, Xu’s appeal brief mainly challenges rulings in the3
Xu argued that this new action against UNCC was not barred by res judicata, had not2
been dismissed and was likely to succeed because the defendants had failed to file an answer.
The only decision listed in Xu’s petition for review is the BIA’s August 13, 2009 order.3
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BIA’s February 27, 2009 decision, including the BIA’s (1) denial of Xu’s three
motions to remand; (2) affirmance of the IJ’s denial of Xu’s two motions for a
continuance; and (3) affirmance of the IJ’s denial of Xu’s “motion for
reconsideration” construed as a motion to reopen.4
We lack jurisdiction to review the BIA’s February 27, 2009 decision
because the September 8, 2009 petition for review was not filed within thirty days
of the entry of that order. See Immigration and Nationality Act (“INA”)
§ 242(b)(1), 8 U.S.C. § 1252(b)(1) (providing that an alien seeking review of a
final order of the BIA must file a petition for review within thirty days of the
issuance of the final order); Dakane v. U.S. Att’y Gen., 399 F.3d 1269, 1272 n.3
(11th Cir. 2005) (explaining that the period for filing a petition for review “is
mandatory and jurisdictional, [and] not subject to equitable tolling” (quotation
marks omitted)). A motion for reconsideration filed with the BIA does not toll the
time for filing a petition for review. Stone v. INS, 514 U.S. 386, 405-06, 115 S.
Ct. 1537, 1549 (1995); Jaggernauth v. U.S. Att’y Gen., 432 F.3d 1346, 1350-51
(11th Cir. 2005). Accordingly, Xu’s petition is dismissed to the extent Xu
challenges any rulings in the BIA’s February 27, 2009 decision.
The petition for review is timely as to the BIA’s August 13, 2009 order
“We review de novo our own subject matter jurisdiction.” Avila v. U.S. Att’y Gen., 5604
F.3d 1281, 1283 (11th Cir. 2009).
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denying Xu’s motion to reconsider and motion to reopen. Therefore, we address
only these rulings.
B. Motion to Reconsider
An alien may file a motion to reconsider before the BIA within thirty days of
the entry of a removal order. See INA § 240(c)(6)(B), 8 U.S.C. § 1229a(c)(6)(B);
8 C.F.R. § 1003.2(b)(2). “A motion to reconsider shall state the reasons for the
motion by specifying the errors of fact or law in the prior [BIA] decision and shall
be supported by pertinent authority.” 8 C.F.R. § 1003.2(b)(1); see also INA
§ 240(c)(6)(C), 8 U.S.C. § 1229a(c)(6)(C). A motion to reconsider that merely
restates the arguments the BIA previously rejected provides no basis for the BIA to
change its prior decision. Calle v. U.S. Att’y Gen., 504 F.3d 1324, 1329 (11th Cir.
2007). “Therefore, merely reiterating arguments previously presented to the BIA
does not constitute ‘specifying . . . errors of fact or law’ as required for a successful
motion to reconsider.” Id. (quoting 8 C.F.R. § 1003.2(b)(1)) (alteration in
original).5
Here, the BIA did not abuse its discretion in denying Xu’s motion to
reconsider. Xu’s motion argued that the BIA erred in treating his December 27,
2007 “motion for reconsideration” (filed with the IJ) as a motion to reopen. As the
We review the BIA’s denial of a motion to reconsider for an abuse of discretion. Calle,5
504 F.3d at 1328.
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BIA pointed out, although Xu’s pro se motion was styled a “motion for
reconsideration,” its contents did not identify any “errors of law or fact.” See INA
§ 240(c)(6)(C), 8 U.S.C. § 1229a(c)(6)(C) (requiring a motion to reconsider to
specify “errors of law or fact” in the IJ’s prior decision); 8 C.F.R. § 1003.23(b)(2)
(same). Instead, the motion asked the IJ to decide Xu’s withholding of removal
claim anew based on documentary evidence he did not submit at his removal
hearing. Xu also asked for voluntary departure based on the new fact that his
criminal hearing had been postponed until January 3, 2008, which he supported
with documentary evidence. Thus, Xu’s pro se motion was in substance a motion
to reopen his removal proceedings based on new evidence. See INA
§ 240(c)(7)(B), 8 U.S.C. § 1229a(c)(7)(B) (providing that a motion to reopen
removal proceedings states “new facts that will be proven” and is “supported by
affidavits or other evidentiary material”); 8 C.F.R. § 1003.23(b)(3) (same).
Denying the motion to reconsider on this ground was not an abuse of discretion.
Xu’s motion to reconsider also re-argued: (1) that the IJ’s denial of his
motions to continue his removal proceedings violated his rights to a criminal trial
and due process; and (2) that his case should be remanded because his UNCC
litigation was ongoing and if he won that litigation, he would not be subject to
removability. The BIA had already considered and rejected these arguments in its
February 27, 2009 decision. Because Xu claimed the BIA had “overlooked” his
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constitutional claims, the BIA reiterated that those claims did not provide basis for
continuing, reopening or remanding Xu’s case. Given that Xu’s motion to
reconsider did not identify any errors of fact or law in the BIA’s February 27, 2009
decision, and merely repeated arguments Xu had made unsuccessfully in his earlier
motions, the BIA did not abuse its discretion in denying the motion.
C. Motion to Reopen
A motion to reopen may be granted if the alien presents to the BIA new
evidence that is material and could not have been discovered or presented at the
removal hearing. 8 C.F.R. § 1003.2(c)(1). An alien moving to reopen bears a
“heavy burden” and must show that 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).6
Xu argues that his second state court complaint against UNCC attached to
his motion to reopen constituted new evidence that he could not have presented at
his removal hearing. However, the BIA did not deny Xu’s motion to reopen
because his evidence was not “new,” but because the new evidence did not warrant
reopening, that is, that Xu’s new evidence would not likely change the result of
Xu’s removal proceedings.
We review the BIA’s denial of a motion to reopen for an abuse of discretion. Scheerer6
v. U.S. Att’y Gen., 513 F.3d 1244, 1252 (11th Cir.), cert. denied, 129 S. Ct. 146 (2008). Our
review is limited to deciding whether the BIA’s exercise of discretion was arbitrary or
capricious. Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1149 (11th Cir. 2005).
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When the BIA issued its February 27, 2009 decision affirming the IJ’s final
removal order, the BIA noted that Xu’s state court litigation against UNCC had
been dismissed. Although Xu’s federal court action remained pending, the BIA
concluded that whether Xu would prevail in that action was speculative and thus
did not warrant reopening or remanding his removal proceedings.
Xu’s motion to reopen advised the BIA that he had begun a new state court
action against UNCC. Given that Xu’s ability to prevail in this new state court
action was also speculative, the fact that he had filed such an action would not
change the result of the BIA’s decision. As the BIA explained, what Xu needed to
submit was evidence that he maintained lawful non-immigrant status, something
his new state court complaint against UNCC did not show. Because Xu failed to
show that, if proceedings were reopened, the result would be different, the BIA did
not abuse its discretion in denying his motion to reopen.
PETITION DISMISSED IN PART AND DENIED IN PART.
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