     Case: 12-60042     Document: 00512031307         Page: 1     Date Filed: 10/24/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         October 24, 2012
                                     No. 12-60042
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

ZHOU WEN DONG,

                                                  Petitioner,

v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,

                                                  Respondent.


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A073 077 833


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Zhou Wen Dong, a native and citizen of China, petitions for review of the
Board of Immigration Appeals’ (BIA) decision to dismiss his appeal from the
Immigration Judge’s (IJ) order denying his motion to reopen. In his motion to
reopen, he contended, inter alia, that the birth of his two children in the United
States, along with changed conditions in China regarding enforcement of the
Chinese family planning policy, entitled him to a new removal proceeding to
consider his eligibility for asylum relief.

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 12-60042

      The denial of a motion to reopen is reviewed “under a highly deferential
abuse-of-discretion standard.” Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir.
2005). We will affirm the decision to deny a motion to reopen “so long as it is not
capricious, racially invidious, utterly without foundation in the evidence, or
otherwise so irrational that it is arbitrary rather than the result of any
perceptible rational approach.” Id. at 304 (internal quotations marks and
citation omitted).
      An alien must file a motion to reopen within 90 days of the date on which
the final administrative decision is entered. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.
§ 1003.2(c)(2). A motion to reopen is not barred by this timing requirement,
however, if the alien’s request for relief “is based on changed country 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.” § 1229a(c)(7)(C)(ii);
see also § 1003.2(c)(3)(ii). To determine whether there has been a material
change in country conditions, “the evidence of country conditions submitted with
the motion [is compared] to those that existed at the time of the merits hearing.”
In re S-Y-G, 24 I. & N. Dec. 247, 253 (BIA 2007). In addition to showing changed
country conditions, the alien must show prima facie eligibility for the relief from
removal that he seeks. INS v. Abudu, 485 U.S. 94, 104 (1988).
      Dong argues that the brief he filed in support of his motion to reopen
demonstrates that he is subject to China’s family planning policy even though
his children were born abroad and that the Chinese Government has enforced
its family planning policy “more strictly.” Dong may not incorporate by reference
the briefs he filed before the IJ or BIA. See Yohey v. Collins, 985 F.2d 222,
224-25 (5th Cir. 1993) (28 U.S.C. § 2254 case). He has therefore failed to
substantiate his assertions regarding proof of changed country conditions.
      Dong also argues that evidence that he had two children in violation of
China’s family planning policy and that local Chinese officials have threatened

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                                  No. 12-60042

to fine and sterilize him demonstrate that conditions in China have changed.
The threat of forced sterilization for violating China’s family planning policy by
having children outside China constitutes a self-induced change in an alien’s
personal circumstances and not a changed country condition. See Zhang v.
Holder, No. 11-60679, 2012 WL 3031844, at *1 (5th Cir. July 26, 2012)
(unpublished). Moreover, the evidence pointed to by Dong does not demonstrate
that the threat of forced sterilization has changed or increased since he was
ordered deported. See Panjwani v. Gonzales, 401 F.3d 626, 633 (5th Cir. 2005).
      The BIA did not abuse its discretion by ruling that Dong failed to establish
changed country conditions sufficient to warrant consideration of his untimely
motion to reopen. See § 1229a(c)(7)(C)(ii); § 1003.2(c)(3)(ii); Zhao v. Gonzales,
404 F.3d 295, 303-04 (5th Cir. 2005). Accordingly, we need not reach his
argument that he established prima facie eligibility for relief from removal.
      Dong’s petition for review is DENIED.




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