Xue Fang Chen v. U.S. Attorney General

Case: 17-14554 Date Filed: 05/08/2018 Page: 1 of 7 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT __________________________ No. 17-14554 Non-Argument Calendar __________________________ Agency No. A208-173-517 XUE FANG CHEN, Plaintiff-Appellant, versus U.S. ATTORNEY GENERAL, Defendant-Appellee. __________________________ Petition for Review of a Decision of the Board of Immigration Appeals __________________________ (May 8, 2018) Case: 17-14554 Date Filed: 05/08/2018 Page: 2 of 7 Before, TJOFLAT, JULIE CARNES, and HULL, Circuit Judges. PER CURIAM: The petitioner, Xue Fang Chen, is a native of China who entered the United States without inspection. On September 23, 2015, after denying her applications for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”), an Immigration Judge (“IJ”) ordered her removed from the United States. Chen reserved an appeal of the IJ’s decision. But she did not appeal. Two years later, on April 11, 2017, Chen moved the IJ to reopen the removal proceedings so that she could once more pursue asylum, withholding of removal, and CAT protection. This motion came more than a year after her removal order became final. The INA permits an alien to “file one motion to reopen proceedings” within ninety days of the date on which the removal order became final. INA § 240(c)(7)(A), (C)(i); 8 U.S.C. § 1229a(c)(7)(A), (C)(i). Because Chen fell outside this time limitation, she invoked an exception which provides as follows. There is no time limit on the filing of a motion to reopen if the basis of the motion is to apply for relief under sections 1158 or 1231(b)(3) of this title and is based on changed conditions arising in the country of nationality or the country to which removal has been ordered, if such evidence is material and was not available and would not have been discovered or presented at the previous proceeding. INA § 240(c)(7)(C)(ii); 8 U.S.C. § 1229a(c)(7)(C)(ii) (footnote omitted). Citing this exception, she moved the IJ to reopen her removal proceedings on the ground 2 Case: 17-14554 Date Filed: 05/08/2018 Page: 3 of 7 that she possessed “material” information of changed conditions in China relating to the treatment of Christians. Id. A motion to reopen proceedings must “state the new facts that will be proven” and support those facts with “affidavits or other evidentiary material.” 8 C.F.R. § 1003.2(c)(1). Thus, to support her motion, Chen attached reports discussing religious freedom in China published by the United States government, 1 non-governmental organizations, and news organizations. She also proffered copies of select Chinese laws, draft policy statements of the Chinese Government, her own affidavit, and letters from family and friends. Upon examining this evidence, the IJ determined that Chen’s evidence did not establish a material change of conditions in China and that she failed to show a reasonable likelihood of success on the merits. She appealed the IJ’s decision denying her motion to reopen the proceedings to the Board of Immigration Appeals (“BIA”). The BIA affirmed the IJ’s decision, noting that “[t]he evidence the respondent references on ...

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