                                                              [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                               JANUARY 7, 2010
                               No. 09-10820                      JOHN P. LEY
                           Non-Argument Calendar                ACTING CLERK
                         ________________________

                          Agency No. A079-408-072


BIN CHEN,


                                                                        Petitioner,

                                    versus

U.S. ATTORNEY GENERAL,

                                                                      Respondent.


                         ________________________

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

                               (January 7, 2010)

Before EDMONDSON, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:

    Bin Chen, a native and citizen of China, petitions for review of the order by
the Board of Immigration Appeals (“BIA”) denying his motion to reopen his

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

      We review the denial of a motion to reopen for an abuse of discretion. Jiang

v. U.S. Attorney Gen., 568 F.3d 1252, 1256 (11th Cir. 2009). The BIA has

discretion to reopen proceedings “as it sees fit.” Anin v. Reno, 188 F.3d 1273,

1279 (11th Cir. 1999); see also 8 C.F.R. § 1003.2(a) (“The [BIA] has discretion to

deny a motion to reopen even if the party moving has made out a prima facie case

for relief.”). Our review is limited to determining whether the BIA exercised its

discretion in an arbitrary or capricious manner. Jiang, 568 F.3d at 1256. “Motions

to reopen in removal proceedings are particularly disfavored.” Id.

      A party may file only one motion to reopen which “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 material.” 8 U.S.C. § 1229a(c)(7)(A),

(B). A motion to reopen must be filed no later than 90 days after the final

administrative decision. 8 C.F.R. § 1003.2(c)(2). But this time limit does not

apply if the motion to reopen is based on changed circumstances in the country of

the movant’s nationality. Id. § 1003.2(c)(3)(ii). To meet this exception, a movant

must offer material evidence that “was not available and could not have been

discovered or presented at the previous hearing.” Id.



                                           2
      Chen sought to reopen his removal proceedings and file a successive asylum

application based on his membership in the Chinese Democracy Party (“CDP”).1

Chen alleged that -- after the IJ ordered him removed -- he joined the CDP while in

the United States and that he had been an active member of the CDP, participating

in rallies and publishing articles critical of the Chinese government on a CDP

website. In his motion, he submitted several articles and U.S. State Department

Country Reports on Human Rights Practices in China; and he contended that these

documents demonstrated changed country conditions in how the Chinese

government treated dissidents who expressed their political opinions over the

internet. Chen maintained that he feared persecution if he returned to China

because of his activities with the CDP.

      The BIA denied the motion to reopen, concluding that the motion was

untimely and that Chen’s decision to join the CDP represented a change in

personal circumstances, not a change in country conditions. And even still, the

BIA reasoned, the evidence Chen presented did not sufficiently show a change in

country conditions since his October 2004 asylum hearing.

      On appeal, Chen argues that the BIA did not evaluate appropriately his

submitted evidence and that he did demonstrate changed country conditions. We



      1
          Chen originally sought relief from removal because he was a practitioner of Falun Gong.

                                                 3
disagree. Chen’s submitted evidence -- all of which the BIA considered -- showed

that both before and after Chen was denied asylum, the Chinese government

monitored, detained, arrested, and imprisoned members of the CDP who used the

internet to publish articles criticizing the government.2 The articles and country

reports about treatment of CDP members from after his asylum denial did not

reflect a material change in the treatment of CDP members. Nothing evidenced

that the Chinese government was more stringently punishing CDP members. See

Jiang, 568 F.3d at 1258 (changed country conditions may arise when a government

begins “more stringently” to enforce preexisting laws in a country). Therefore, we

do not conclude that the BIA’s denial of Chen’s motion was an abuse of

discretion.3

       Because Chen’s motion to reopen was not timely, and he did not present

evidence establishing changed conditions in China, the BIA’s denial of his motion

was not arbitrary or capricious, or otherwise an abuse of discretion.

       PETITION DENIED.




       2
       Three of the articles Chen submitted about the treatment of CDP members predated his
October 2004 denial of removal relief.
       3
       Because Chen’s submitted documents did not evidence a change in China’s conditions,
we need not address his claim that his evidence demonstrated a prima facie case for relief from
removal.

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