Yue Mei Ding v. US Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-12900
Non-Argument Calendar
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Agency No. A078-690-823
YUE MEI DING,
a.k.a. Yuemei Ding,
Petitioner,
versus
US ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(February 8, 2013)
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Before TJOFLAT, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
Yue Mei Ding, a native and citizen of China, petitions for review of the
Board of Immigration Appeal’s (the “BIA”) denial of her motion to reopen
removal proceedings based on changed country conditions. In her petition, Ding
argues that the BIA erred in denying her motion to reopen because the record
shows that persecution of Christians in China has increased since the close of her
removal proceedings. She also argues that the BIA failed to meaningfully explain
why it refused to reopen her case in light of the fact that, in other unpublished
decisions, the BIA has reopened allegedly similar cases. Additionally, Ding
requests that her case be remanded to the BIA to consider whether it should
exercise its sua sponte authority to reopen her case.
I.
We review the denial of a motion to reopen an immigration petition for
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 BIA exercised its
discretion in an arbitrary or capricious manner. Id.
A party may only file one motion to reopen removal proceedings and that
motion “shall state the new facts that will be proven at a hearing to be held if the
motion is granted, and shall be supported by affidavits or other evidentiary
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material.” 8 U.S.C. § 1229a(c)(7)(A), (B). Generally, a motion to reopen must “be
filed within 90 days of the date of entry of a final administrative order of removal.”
Id. § 1229a(c)(7)(C)(i). An exception to the time and number limitations for a
motion to reopen is available if the motion is for the purpose of reapplying for
relief “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.” 8 C.F.R. § 1003.2(c)(3)(ii); see 8 U.S.C. § 1229a(c)(7)(C)(ii) (same).
“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.
We have held that, at a minimum, the BIA may deny a motion to reopen on
the following three grounds: (1) failure to establish a prima facie case; (2) failure
to introduce evidence that was material and previously unavailable; or (3) a
determination that an alien is not entitled to a favorable exercise of discretion
despite statutory eligibility for relief. Al Najjar v. Ashcroft, 257 F.3d 1262, 1302
(11th Cir. 2001).
The BIA did not abuse its discretion in denying Ding’s motion to reopen.
First, Ding’s motion was untimely. On April 16, 2009, the BIA dismissed Ding’s
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appeal from the Immigration Judge’s decision denying her applications for asylum,
withholding of removal, and protection under the Convention Against Torture—a
decision which rendered final Ding’s order for removal. Ding filed her motion to
reopen on October 17, 2011. Because her motion was filed more than seventeen
months after the final administrative order in her case, her motion was untimely.
See 8 U.S.C. § 1229a(c)(7)(C)(i) (requiring motion to be filed within ninety days).
Second, Ding failed to establish changed circumstances in her home country,
China. As the BIA found, the evidence submitted in support of Ding’s motion to
reopen did not sufficiently demonstrate material evidence about changed
circumstances in China concerning the treatment of Christians. The evidence in
the record indicated that, prior to, and at the time of, Ding’s 2009 hearing, the
Chinese government subjected unregistered churches and their members to threats,
repression, harassment, detention, and sometimes physical abuse, and that the
degree of restrictions varied from region to region. The 2010 Country Report and
the Religious Freedom Report do not establish that conditions changed in China
with regard to the treatment of unregistered churches and their members. Instead,
these reports indicate that the Chinese government “continued to” scrutinize,
harass, and detain members of religious groups.
Additionally, the BIA did not err by failing to reopen Ding’s case in light of
its prior unpublished decisions. The BIA’s unpublished decisions have no
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precedential value. De la Rosa v. U.S. Att’y Gen., 579 F.3d 1327, 1336 (11th Cir.
2009) (citing Matter of Zangwill, 18 I. & N. Dec. 22, 27 (BIA 1981), overruled on
other grounds by Matter of Ozkok, 19 I. & N. Dec. 546 (BIA 1988)). Moreover,
based on the evidence in the record, Ding has failed to show that the facts and
circumstances in the unpublished cases are actually similar to her case. We deny
the petition insofar as it challenges the denial of Ding’s motion to reopen removal
proceedings based on changed country circumstances.
II.
Next, we turn to whether we have the power to remand Ding’s case to the
BIA to consider whether it should exercise its sua sponte authority to reopen her
case. We review our subject matter jurisdiction de novo. Gonzalez-Oropeza v.
U.S. Att’y Gen., 321 F.3d 1331, 1332 (11th Cir. 2003). “We lack jurisdiction to
consider a claim raised in a petition for review unless the petitioner has exhausted
his administrative remedies with respect thereto.” Amaya-Artunduaga v. U.S. Att’y
Gen., 463 F.3d 1247, 1250 (11th Cir. 2006).
The BIA at any time can reopen or reconsider on its own motion a case in
which it has rendered a decision. 8 C.F.R. § 1003.2(a). Ding’s motion to reopen
her removal proceedings was titled “Motion to Reopen for Changed Country
Conditions, Sua Sponte Jurisdiction and a Stay of Removal.” Despite asserting sua
sponte jurisdiction in the title of her motion, Ding did not argue in her motion
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before the BIA that it should reopen her proceeding pursuant to its sua sponte
authority. See Amaya-Artunduaga, 463 F.3d at 1250 (“An issue or claim does not
exist in isolation; rather, each is presented in the context of argument.”). Because
Ding failed to present any argument relating to the BIA’s sua sponte authority to
reopen her proceedings, she did not exhaust her administrative remedies as to this
claim for remand. We thus lack the power to entertain this claim. See Sundar v.
INS, 328 F.3d 1320, 1323 (11th Cir. 2003) (“[W]e lack jurisdiction to consider
claims that have not been raised before the BIA.”). Accordingly, we dismiss the
petition with regards to Ding’s request for remand.
PETITION DISMISSED IN PART, DENIED IN PART.
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