Case: 15-10621    Date Filed: 09/21/2015   Page: 1 of 6


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-10621
                        Non-Argument Calendar
                      ________________________

                       Agency No. A087-643-119



XIAOMING LIU,

                                                                       Petitioner,

                                   versus

U.S. ATTORNEY GENERAL,

                                                                     Respondent.

                      ________________________

                 Petition for Review of a Decision of the
                      Board of Immigration Appeals
                       ________________________

                            (September 21, 2015)



Before WILSON, JULIE CARNES, and EDMONDSON, Circuit Judges.
              Case: 15-10621     Date Filed: 09/21/2015   Page: 2 of 6


PER CURIAM:



      Xiaoming Liu, a native and citizen of China, petitions for review of the

Board of Immigration Appeals’s (“BIA”) denial of Liu’s motion for

reconsideration of the BIA’s September 2014 order and Liu’s motion to reopen.

No reversible error has been shown; we deny the petition.

      In 2009, Liu’s then-wife -- Hong Zhang -- filed an application for asylum,

withholding of removal and CAT relief based on China’s family-planning policy.

Briefly stated, Zhang asserted that, because she got pregnant out-of-wedlock and

was ineligible for a birth permit, she was forced to have an abortion, was subjected

to public ridicule, and was required to pay a fine. Liu (the baby’s father) was listed

as a derivative beneficiary on Zhang’s application for asylum.

      The Immigration Judge (“IJ”) denied relief, concluding that Zhang’s claim

was not credible. Zhang and Liu appealed to the BIA. While their appeal was

pending, however, two pertinent things happened: (1) Zhang and Liu divorced and

(2) Zhang withdrew voluntarily her appeal to the BIA.

      Then, in its September 2014 order, the BIA dismissed Liu’s appeal. The

BIA determined that (1) Liu had filed no independent application for asylum or

other relief; (2) Liu lacked standing to pursue independently the claim for relief


                                          2
               Case: 15-10621     Date Filed: 09/21/2015   Page: 3 of 6


raised in Zhang’s asylum application; and (3) Liu was no longer eligible for

derivative status now that he and Zhang were divorced.

      We have already addressed Liu’s petition for review of the BIA’s September

2014 order. See Liu v. U.S. Att’y Gen., 601 F. App’x 921 (11th Cir. 2015)

(unpublished). In that petition for review, Liu asserted two arguments: (1) the BIA

erred in determining that Liu filed no independent asylum application; and (2) the

BIA erred in dismissing Liu’s appeal instead of remanding his case to the IJ for

further proceedings. We rejected both arguments, concluding substantial evidence

supported the BIA’s determination that Liu filed no separate asylum application

and concluding we lacked jurisdiction to consider Liu’s argument about a remand,

because he failed to raise it to the BIA. 

1. Motion for Reconsideration



      In Liu’s motion for reconsideration of the BIA’s September 2014 order, Liu

challenged the BIA’s dismissal of his appeal for the same two arguments he raised

in his first petition for review with this Court. The BIA denied the motion, and Liu

now reasserts the same two arguments in this petition for review.




                                           3
               Case: 15-10621     Date Filed: 09/21/2015    Page: 4 of 6


        Because we have already rejected each of the arguments that Liu raises on

appeal when we denied his first petition for review, he is precluded from raising

them again. Under the “law of the case” doctrine, an appellate court’s factual

findings and legal conclusions are “generally binding on all subsequent

proceedings in the same case in the trial court or on a later appeal.” Mega Life &

Health Ins. Co. v. Pieniozek, 

, 1405 (11th Cir. 2009). The

exceptions to this rule are few: “(1) a subsequent trial produces substantially

different evidence; (2) controlling authority has since made a contrary decision of

law applicable to that issue; or (3) the prior decision was clearly erroneous and

would work a manifest injustice.” 

exceptions are inapplicable

here, we deny Liu’s petition for review of the BIA’s denial of his motion for

reconsideration. Moreover, the BIA abused no discretion in determining that Liu

failed to establish an error of law or fact sufficient to warrant reconsideration of his

case.



2. Motion to Reopen



        Liu also challenges the BIA’s denial of his motion to reopen his appeal. In

his motion, Liu argued that he was entitled to file a new asylum application --

                                           4
               Case: 15-10621     Date Filed: 09/21/2015     Page: 5 of 6


pursuant to 8 C.F.R. § 1208.4(a)(4)(i)(C), (ii) -- because his divorce constituted a

“changed circumstance.” The BIA denied the motion, noting that Liu could have

filed his own asylum application earlier in the proceedings but chose not to. The

BIA also concluded (1) that Liu’s divorce was no “changed circumstance” that

affected materially his eligibility for asylum; and (2) that Liu’s proposed asylum

application raised a claim identical to the claim raised in Zhang’s application,

which the IJ already denied as not credible.

      We review the BIA’s denial of a motion to reopen for abuse of discretion,

determining only “whether the BIA exercised its discretion in an arbitrary or

capricious manner.” Jiang v. U.S. Att’y Gen., 

, 1256 (11th Cir.

2009). “Motions to reopen in removal proceedings are particularly disfavored.”

to reopen proceedings shall not be granted unless it appears to the

Board that evidence sought to be offered is material and was not available and

could not have been discovered or presented at the former hearing[.]” 8 C.F.R. §

1003.2(c)(1). The BIA may deny a motion to reopen if, among other things, the

petitioner fails to establish a prima facie case or the petitioner fails to submit

evidence that is both material and previously unavailable. 

.

To demonstrate that evidence is “material,” a petitioner bears a “heavy burden” to

                                            5
                 Case: 15-10621        Date Filed: 09/21/2015        Page: 6 of 6


show that, “if the proceedings were opened, the new evidence would likely change

the result in the case.” 

       The BIA abused no discretion in denying Liu’s motion to reopen. Liu

presented no “material” facts: facts that would likely change the outcome of the

case. Liu’s proposed asylum application is based on the same set of facts already

raised in Zhang’s application. Liu conceded in his motion for reconsideration that,

because the IJ had already denied relief after hearing testimony from both Zhang

and Liu, Liu’s filing a new asylum application was unlikely to produce a different

result. Because Liu has failed to present new “material” evidence, the BIA’s

denial of Liu’s motion to reopen was not arbitrary or capricious.*

       PETITION DENIED.




*
 Whether Liu’s divorce constituted a “changed circumstance” for purposes of 8 C.F.R.
§ 1208.4(a)(4)(i)(C), (ii), is not pertinent to our decision. Liu seeks no asylum relief based on his
“changed circumstance,” and Liu has failed to show that his divorce would likely change the
outcome of his case.
                                                    6