     Case: 11-60379     Document: 00511794011         Page: 1     Date Filed: 03/20/2012




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

                                                                            FILED
                                                                          March 20, 2012
                                     No. 11-60379
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

JIE ZHENG,

                                                  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. A088 775 575


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        Jie Zheng, a native and citizen of China, was ordered removed in 2008,
and her applications for asylum, withholding, and protection under the
Convention Against Torture (CAT) were denied.                   Zheng filed a motion to
reconsider, asserting that her asylum application was timely because it was filed
within one year of her changed circumstances, her baptism and the birth of her
second child in the United States. She also filed a motion to reopen, asserting
that she had established a well-founded fear of future persecution based on her

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-60379    Document: 00511794011      Page: 2   Date Filed: 03/20/2012

                                  No. 11-60379

conversion to Christianity and her violation of Chinese family-planning
regulations.
      The BIA denied the motion to reconsider, finding that Zheng had not
shown that her asylum application was timely. The BIA denied the motion to
reopen because Zheng’s evidence, a letter from family-planning officials and an
affidavit from an alleged expert, failed to demonstrate her prima facie eligibility
for asylum based on her violation of China’s one-child policy. Likewise, the BIA
also determined that the evidence supporting Zheng’s argument that she would
suffer persecution based on her religious beliefs, the same expert’s affidavit and
the 2010 Annual Report by the United States Commission on International
Freedom (the 2010 Report), was insufficient to establish her prima facie
eligibility for asylum on that basis.
      In her petition for review, Zheng argues that her asylum application was
timely because it was filed within one year of her changed circumstances, the
birth of her second child in the United States. Zheng further argues that the
BIA abused its discretion by not considering the letter from family-planning
officials because it was unauthenticated and by determining that Dr. Flora Sapio
was not an expert. Zheng contends that her evidence shows that she has a well-
founded fear of persecution based on her violation of China’s family-planning
regulations and her religious beliefs. Zheng does not challenge the denial of the
motion to reopen regarding CAT protection. This issue is therefore waived. See
Thuri v. Ashcroft, 380 F.3d 788, 793 (5th Cir. 2004).
      We may review claims raising constitutional or purely legal questions. See
8 U.S.C. § 1252(a)(2)(D); Zhu v. Gonzales, 493 F.3d 588, 594 (5th Cir. 2007).
However, the agency’s determination of whether extraordinary circumstances
or a change in circumstances justified the untimely filing of an asylum
application is a question of fact, not a constitutional or legal question. Zhu, 493
at 595-96 & n.31. Thus, we lack jurisdiction to review Zheng’s motion to


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                                  No. 11-60379

reconsider the BIA’s decision affirming the immigration judge’s assessment of
the facts and circumstances affecting the timeliness of Zheng’s asylum
application. See id. at 595-96 & n.31.
      Although the decision whether to grant or deny a motion to reopen is
discretionary, we have jurisdiction because the BIA’s discretion is not statutorily
based. Kucana v. Holder, 130 S. Ct. 827, 834-40 (2010). A highly deferential
abuse of discretion standard applies to review of the BIA’s denial of a motion to
reopen. Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005). “Such discretion
is not to be disturbed so long as it is not capricious, racially invidious, utterly
without foundation in the evidence, or otherwise so aberrational that it is
arbitrary rather than the result of any perceptible rational approach.”
Manzano-Garcia v. Gonzales, 413 F.3d 462, 469 (5th Cir. 2005) (internal
quotation marks and citation omitted). The alien seeking asylum has the burden
of establishing that she is a refugee, meaning, as relevant here, that she has a
well-founded fear of persecution in her home country on the basis of her race,
religion, nationality, membership in a particular social group, or political
opinion. 8 U.S.C. §§ 1101(a)(42)(A); 1158(b)(1)(B)(i); Zhang v. Gonzales, 432 F.3d
339, 344 (5th Cir. 2005).
      Zheng’s argument that the BIA abused its discretion in not considering the
family-planning letter because it was not authenticated is unpersuasive. Section
287.6(b)(1) of Title 8 of the Code of Federal Regulations provides that a foreign
record “shall be evidenced by an official publication thereof, or by a copy attested
by an officer so authorized.” Zheng does not dispute that the letter was not so
authenticated. In addition, the letter was unsigned and obtained for purposes
of the motion to reopen. The BIA did not abuse its discretion in determining
that the village certificate was unreliable due to lack of authentication. See
Matter of H-L-H & Z-Y-Z, 25 I & N Dec. 209, 214-15 (BIA 2010).




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                                  No. 11-60379

      Regardless of whether the BIA erred in determining that Sapio was not an
expert, her report does not support Zheng’s contention that she has a well-
founded fear of sterilization upon her return to China. In particular, the
affidavit cites only Chinese laws and Fujian province regulations in support of
her opinion that Zheng would be sterilized. Sapio cites no sources indicating
that the one-child policy is currently enforced against couples returning to China
with children born in the United States. Cf. Guo v. Ashcroft, 386 F.3d 556, 565
(5th Cir. 2004). Further, Zheng has not shown that Sapio’s affidavit was new
and previously unavailable evidence. See INS v. Abudu, 485 U.S. 94, 104 (1988).
Thus, the BIA did not abuse its discretion in determining that the evidence
failed to establish a prima facie case of eligibility for asylum and in denying
Zheng’s motion to reopen. See Zhao, 404 F.3d at 303.
      Zheng’s argument that she established a well-founded fear of future
persecution based on her religious beliefs is likewise without merit. She relies
on the 2010 Report and Sapio’s affidavit in support of her argument. Although
the 2010 Report provides that some Protestant leaders and members have been
persecuted in the past, the report also states that approximately 400 Protestants
had been detained in the previous year, that the amount of those arrested and
imprisoned had decreased from the previous year, and that there are 40 to 60
million unregistered Protestants in China. Because the overall number of those
detained is small compared to the enormous number of unregistered Protestant
adherents, we conclude that the 2010 Report does not compel a finding of
persecution to a reasonable degree. See Chen v. Gonzales, 470 F.3d 1131, 1137-
38 (5th Cir. 2006). Further, for the same reasons cited above, Sapio’s affidavit
is insufficient to establish that Zheng has a well-founded fear of religious
persecution.
      PETITION FOR REVIEW DISMISSED IN PART FOR LACK OF
JURISDICTION AND DENIED IN PART.


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