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

                                                                   FILED
                                                                  July 11, 2008
                                No. 07-60524
                              Summary Calendar                Charles R. Fulbruge III
                                                                      Clerk

ZHEN DONG

                                            Petitioner

v.

MICHAEL B MUKASEY, U S ATTORNEY GENERAL

                                            Respondent


                     Petition for Review of an Order of the
                        Board of Immigration Appeals
                             BIA No. A72 408 784


Before JOLLY, DENNIS and PRADO, Circuit Judges.
PER CURIAM:*
      Zhen Dong, a native and citizen of China, has filed a petition for review of
the Board of Immigration Appeals’ (BIA) denial of his motion to reopen removal
proceedings as time- and number-barred. Dong argues that the BIA abused its
discretion in finding that Dong’s allegations of increased enforcement of China’s
population control laws were insufficient to qualify as changed country
conditions under 8 C.F.R. § 1003.2(c)(3)(ii), so as to exempt Dong’s motion to
reopen from the time and number bars.          Dong also argues that the BIA

      *
      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should not be published and is not precedent except under the limited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.
                                  No. 07-60524

mischaracterized his argument to refer to changes in his personal circumstances
rather than the country’s. He further avers that, given the rise of persecutive
measures to enforce family planning practices and the birth of his children, he
or his wife will be subjected to forced abortions and/or sterilization if returned
to China, thus warranting the grant of asylum and withholding of removal. For
this reason, Dong argues, he and his wife have a reasonable fear of persecution
if they return to China.
      In its decision, the BIA considered Dong’s arguments and evidence as to
conditions in China and Dong’s personal circumstances. However, Dong’s own
evidence supports the BIA’s conclusion. Dong’s evidence shows that abortions
and forced sterilizations continued to be documented, although officially not
permitted, but not that they increased. Furthermore, Dong’s two prior motions
to reopen argued the same “changed” circumstances. In those motions, Dong
argued that he and his wife feared China’s coercive family planning policies.
Dong fails to show an increase in the threat that he describes in those prior
motions. Dong has failed to show that the BIA abused its discretion. See Lara
v. Trominski, 216 F.3d 487, 496 (5th Cir. 2000); Singh v. Gonzales, 436 F.3d 484,
487 (5th Cir. 2006).
      Dong additionally asserts that the BIA erred in requiring him to show
changed circumstances in China under 8 U.S.C. § 1229a and 8 C.F.R.
§ 1003.2(c)(3)(ii). Dong argues that, under 8 U.S.C. 1158(a)(2)(D), aliens with
changed personal circumstances after a removal order may file a successive
asylum application without having to show a change in country conditions. In
Matter of C-W-L, 24 I&N Dec. 346, 351 (BIA 2007), the BIA rejected this
argument and we reject it as well.       Section 1158(a)(2)(D) governs asylum
applications only and is not applicable to the reopening of removal proceedings.
8 U.S.C. § 1229a and 8 C.F.R. § 1003.2 (c)(3)(ii), on the other hand, expressly
applies to aliens under final orders of removal seeking to apply or reapply for
asylum. Dong fails to show that the BIA analysis of his motion to reopen under

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                                  No. 07-60524

8 U.S.C. § 1229a and 8 C.F.R. § 1003.2 (c)(3)(ii), rather than § 1158(a)(2)(D), was
arbitrary, capricious, or manifestly contrary to the statutes. See Chevron U.S.A.,
Inc. v. Natural Resources Defense Council, 467 U.S. 837, 844 (1984).
      For these reasons, Dong’s petition for review of the decision of the BIA is
DENIED.




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