Case: 12-15805   Date Filed: 08/13/2013   Page: 1 of 5


                                                         [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-15805
                         Non-Argument Calendar
                       ________________________

                        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
                        ________________________

                             (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., 

, 1256 (11th Cir. 2009). “Our review is limited

to determining whether the [Board] exercised its discretion in an arbitrary or

capricious manner.” 

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,” 

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., 

, 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., 

, 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 

. 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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