                    Case: 12-10730            Date Filed: 01/28/2013   Page: 1 of 5

                                                                          [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 12-10730
                                        Non-Argument Calendar
                                      ________________________

                                           Agency No. A079-670-212




LIFANG LIN,

llllllllllllllllllllllllllllllllllllllll                               Petitioner,

                                                    versus

U.S. ATTORNEY GENERAL,

llllllllllllllllllllllllllllllllllllllll                               Respondent.

                                     ________________________

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

                                              (January 28, 2013)

Before HULL, JORDAN and KRAVITCH, Circuit Judges.

PER CURIAM:

         Lifang Lin seeks review of the Board of Immigration Appeals’ (BIA’s)
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order denying her second motion to reopen her removal proceedings. After careful

review, we deny the petition.

                                         I.

      Lin, a native and citizen of the People’s Republic of China, was served with

a Notice to Appear in 2003 charging her with removability under 8 U.S.C.

§ 1182(a)(7)(A)(i)(I), as an alien not in possession of a valid immigrant visa or

entry document. Lin conceded removability but filed applications for asylum,

withholding of removal, and relief under the United Nations Convention Against

Torture. In 2004, an Immigration Judge denied Lin’s applications for relief. Lin

appealed to the BIA, which affirmed. This court dismissed Lin’s petition for

review. Lin v. U.S. Att’y Gen., 140 F. App’x 196 (11th Cir. 2005).

      In 2010, Lin filed a motion to reopen her removal proceedings based on

China’s family-planning laws. Lin contended that she was in violation of these

laws because she had given birth to two children while in the United States. If

returned to her home in Fujian Province, China, she argued that she would be

forcibly sterilized. Among other evidence, Lin attached notices from local

authorities in Fujian indicating that she would be sterilized when she returned to

China because she had two children while overseas. Instead of relying on these

notices, however, the BIA relied on the 2007 State Department Country Report

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that stated Fujian Province does not count foreign-born children who are not

registered as permanent residents for purposes of enforcing the family-planning

laws. The BIA accordingly found that Lin failed to demonstrate that she would

face forcible sterilization and denied the motion to reopen. Lin did not seek

review of that order.

       In 2011, Lin filed a second motion to reopen.1 The BIA denied the motion

because the evidence showed that only parents of children born in China were

forcibly sterilized. This is Lin’s petition for review.

                                              II.

       We review the BIA’s decision not to reopen immigration proceedings for an

abuse of discretion. Ali v. U.S. Att’y Gen., 443 F.3d 804, 808 (11th Cir. 2006).

We will only find that the BIA has abused its discretion if its decision was

arbitrary or capricious. Id. The BIA’s factual findings are reviewed for

substantial evidence: we must affirm them if supported by “reasonable,

substantial, and probative evidence on the record considered as a whole.” Al

Najjar v. Ashcroft, 257 F.3d 1262, 1283-84 (11th Cir. 2001) (internal quotation



       1
        At the same time, Lin also filed a motion to reconsider the BIA’s denial of her first
motion to reopen. Because Lin fails to argue that the BIA erred in denying the motion to
reconsider, however, she has abandoned that issue. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226,
1228 n.2 (11th Cir. 2005). We review only the BIA’s denial of the second motion to reopen.

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marks omitted).

      Generally, an alien may file only one motion to reopen, which must be filed

within 90 days of the final removal order. 8 C.F.R. § 1003.23(b)(1). To overcome

these limitations, Lin was required to show changed conditions in China with

material evidence that was previously unavailable. See id. § 1003.23(b)(4)(i); Li v.

U.S. Att’y Gen., 488 F.3d 1371, 1374-75 (11th Cir. 2007).

       Lin argues that the BIA acted arbitrarily and capriciously by concluding

that, because it only referred to parents of children born in China, the evidence she

presented with her second motion to reopen did not establish changed country

conditions. In Li, we rejected the distinction drawn by the BIA between children

born in China and those born elsewhere when there was no evidence in the record

to support it. 488 F.3d at 1376. But here, the 2007 State Department Country

Report supported the BIA’s finding because the Report shows the local and

national governments make the same distinction. The Report indicates that

children born abroad are not counted for family-planning purposes if they are not

registered as permanent residents of China and that U.S. officials were not aware

of any national or local policy mandating the sterilization of a parent returning to

China with children born abroad. And the BIA was entitled to rely heavily on this

Report to determine country conditions. Reyes-Sanchez v. U.S. Att’y Gen., 369

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F.3d 1239, 1243 (11th Cir. 2004).

       Lin argues the BIA’s finding was nonetheless in error because the notices

from local family-planning authorities in her province she filed in support of her

first motion to reopen compel the conclusion that she would be sterilized even

though her children were born overseas. But Lin could not, and did not, rely on

these notices in the second motion to reopen because they were not previously

unavailable. See Li, 488 F.3d at 1374-75. In fact, she relied on them previously.

The only previously unavailable evidence Lin presented with her second motion

does not address whether the conditions in China have changed for parents of

children born abroad.

       The 2007 State Department Country Report provides substantial evidence to

support the BIA’s finding that Lin had failed to show that the conditions had

materially changed in China’s Fujian Province. Consequently, we cannot say the

BIA abused its discretion in denying Lin’s second motion to reopen.2

       PETITION DENIED.




       2
         Because the BIA did not abuse its discretion in denying the motion to reopen, we need
not decide whether Lin established a prima facie case for relief. See Al Najjar, 257 F.3d at 1302.

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