                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 07-1587



XIU QIN LIN,

                Petitioner,

          v.


MICHAEL B. MUKASEY, Attorney General,

                Respondent.



On Petition for Review of an Order of the Board of Immigration
Appeals. (A74-856-016)


Submitted:   February 26, 2008              Decided:   April 29, 2008


Before MICHAEL and KING, Circuit Judges, and WILKINS, Senior
Circuit Judge.


Petition granted and remanded by unpublished per curiam opinion.


Gary J. Yerman, New York, New York, for Petitioner.       Peter D.
Keisler, Assistant Attorney General, Emily Anne Radford, Assistant
Director, Aviva L. Poczter, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

          Xiu   Qin    Lin,   a   native    and   citizen   of   the   People’s

Republic of China, petitions for review of the Board of Immigration

Appeals’ (“Board”) order denying her second motion to reopen her

immigration proceedings.          Because we find the Board abused its

discretion in denying the motion, we grant the petition for review,

vacate the Board’s order, and remand this case to the Board for

further proceedings.

          After illegally entering the United States in October

1998, Lin filed an application for asylum, withholding of removal,

and protection under the Convention Against Torture, claiming

entitlement to relief because of her opposition to China’s family

planning policy.      Although Lin was neither married nor pregnant at

the time of her application, Lin asserted she had a well-founded

fear of future persecution if she were removed to China because she

would be forced to undergo a gynecological examination.

          In a decision that issued on January 14, 2000, the

Immigration Judge (“IJ”) denied Lin’s application. Lin appealed to

the Board, which affirmed the IJ’s decision without opinion on

September 30, 2002.      Lin did not petition this court for review of

this decision. Instead, over three years later, Lin filed a motion

to reopen proceedings based on changed circumstances, which the

Board denied on June 13, 2006.       Lin did not petition this court for

review of this order.


                                    - 2 -
            Lin filed a second motion to reopen in November 2006,

arguing her immigration proceedings should be reopened because new

and previously unavailable evidence established a change in country

conditions; namely, increased enforcement of the family planning

policy.      Lin    also   argued    that    a   change   in    her    personal

circumstances — giving birth to three children while living in the

United    States     —   necessitated    re-evaluation     of    her    asylum

application because she was now in violation of China’s family

planning policy, and would be forcibly sterilized if she returned.

Lin further claimed, in the alternative, that she was entitled to

file a successive asylum application, despite being under a final

order of removal.

            In support of her motion, Lin submitted the following

evidence:          her   personal,    notarized     affidavit,        detailing

conversations with her father, who lives in the Fujian Province

(Lin’s home province), in which her father reported that several

women were forcibly sterilized after the birth of their second

children; an amended I-589 application and supporting affidavit;

Lin’s birth certificate; Lin’s husband’s legal permanent resident

card; Lin’s marriage certificate; and the birth certificates of

Lin’s three children.       In addition to this personal evidence, Lin

also submitted objective documentary evidence to establish an

increase in the government’s enforcement measures.               Among other

things, this evidence included the Policy Statement from the


                                     - 3 -
Administrative       Office     of    the   National     Population      and    Family

Planning Committee (“Policy Statement”); a 1999 question and answer

sheet issued by the Changle City Family Planning Office addressing

the family planning policy; demographer John Aird’s September 2002

testimony before the Congressional-Executive Commission on China;

the   May    2003    Consular    Information       Sheet       on   China;    the   2004

Department of State Country Report on China; the 2005 Department of

State Country Report on China (“2005 Country Report”); Fujian

Province’s Population and Family Planning Regulation, issued in

2002; the 2005 annual report from the Congressional-Executive

Commission on China; and two newspaper articles reporting human

rights violations arising from enforcement of the family planning

policy.      Lin argued that, considered together, these documents

established changed country conditions.

              The Board denied Lin’s motion to reopen, concluding the

birth of Lin’s three children in the United States constituted a

change      in   personal     circumstances,       not     a    change   in    country

conditions.         Relying upon the 2005 Country Report and taking

administrative notice of the 2006 State Department Report on

Country Conditions in China (“2006 Country Report”), the Board

opined Lin’s evidence established that country conditions were

“substantially       similar”        to   those   in   existence      when    she    was

initially denied relief. This petition for review timely followed.




                                          - 4 -
            Lin’s petition for review is limited to the Board’s

decision denying her second motion to reopen. Lin failed to timely

petition for review of the Board’s September 30, 2002 order, which

affirmed and adopted the immigration judge’s denial of her requests

for   asylum,   withholding      of     removal,     or   protection       under   the

Convention Against Torture, or of the Board’s denial of her first

motion to reopen.        Lin had thirty days from the date of those

orders to timely file a petition for review.                      See 8 U.S.C.

§ 1252(b)(1) (2000). This time period is “jurisdictional in nature

and must be construed with strict fidelity to [its] terms.”                     Stone

v. INS, 514 U.S. 386, 405 (1995).           Thus, Lin’s petition for review

of the Board’s order denying her second motion to reopen, filed

June 22, 2007, cannot be considered timely as to the Board’s

previous orders.

            An alien may file one motion to reopen within ninety days

of    the   entry   of   a     final    order   of    removal.         8    U.S.C.A.

§    1229a(c)(7)(A),     (C)    (West    2005   &     Supp.   2007);       8   C.F.R.

§ 1003.2(c)(2) (2006), invalidated on other grounds, William v.

Gonzales, 499 F.3d 329, 334 (4th Cir. 2007).                      The time and

numerical limitations do not apply if the basis for the motion to

reopen is to seek asylum or withholding of removal based on changed

country conditions.      8 U.S.C.A. § 1229a(c)(7)(C)(ii) (West 2005 &

Supp. 2007); 8 C.F.R. § 1003.2(c)(3)(ii) (2006).               To proceed under

this exception, the applicant must present evidence of changed


                                        - 5 -
country conditions that “is material and was not available and

would   not    have   been    discovered   or   presented   at   the   previous

proceeding.”      8 U.S.C.A. § 1229a(c)(7)(C)(ii); see also 8 C.F.R.

§ 1003.2(c)(3)(ii).          “A motion to reopen proceedings 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 C.F.R. § 1003.2(c)(1) (2006).

              We review the Board’s denial of a motion to reopen for

abuse of discretion.         8 C.F.R. § 1003.2(a) (2006); INS v. Doherty,

502 U.S. 314, 323-24 (1992); Nibagwire v. Gonzales, 450 F.3d 153,

156 (4th Cir. 2006).          The denial of a motion to reopen must be

reviewed with extreme deference, since immigration statutes do not

contemplate reopening and the applicable regulations disfavor such

motions.      M.A. v. INS, 899 F.2d 304, 308 (4th Cir. 1990) (en banc).

This court reverses the Board’s denial of a motion to reopen only

if the denial is “arbitrary, capricious, or contrary to law.”

Barry v. Gonzales, 445 F.3d 741, 745 (4th Cir. 2006) (internal

quotations and citation omitted).

              The Board issued its final order of removal on September

30, 2002.      Lin, however, did not file this second motion to reopen

until November 21, 2006, almost four years after the expiration of

the ninety-day deadline for filing such a motion.                 Thus, Lin’s

motion was untimely.         Lin’s motion was also numerically barred, as

it was Lin’s second motion to reopen.             8 C.F.R. § 1003.2(c)(2).


                                     - 6 -
Thus, the central issue is whether the Board abused its discretion

in concluding Lin’s evidence of changed country conditions was

insufficient to support the untimely and numerically barred motion

to reopen.

           In a recently published decision, the Eleventh Circuit

considered facts very similar to those at issue here, and reached

a conclusion contrary to the decision reached by the Board in Lin’s

case.    Li v. U.S. Att’y Gen., 488 F.3d 1371 (11th Cir. 2007); but

see Wang v. BIA, 437 F.3d 270 (2d Cir. 2006).     In Li, a Chinese

national from the Fujian Province sought to reopen her immigration

proceedings based on the birth of her two children1 and increased

family planning enforcement efforts in the Fujian Province. Id. at

1372-73.   In support of her motion to reopen, Li submitted much of

the same evidence Lin presented to the Board here.    Id. at 1373.

The only material difference in the evidence is that the applicant

in Li presented an affidavit from her mother reporting forced

abortions and sterilizations, whereas Lin detailed her father’s

reports of forced sterilizations in her own affidavit.2   Id.




     1
      It is unclear whether Li gave birth to her children before or
after her final order of removal was issued.
     2
      Lin’s evidence also differed from Li’s in that Li provided
the 2005 Consular Information Sheet, whereas Lin provided the 2003
version of that document. Li, 488 F.3d at 1373. However, both
documents contain the same relevant information: that except under
certain circumstances, the Chinese government considers children
born to Chinese nationals abroad to be Chinese citizens. Id.

                                - 7 -
             In   granting    Li’s   petition    for     review,   the   Eleventh

Circuit set forth all the evidence Li presented in support of her

claim, and concluded it was unavailable at the time of her initial

asylum hearing.       Id. at 1373, 1375.        The Eleventh Circuit further

opined   this     was   “evidence    of    a    recent    campaign   of    forced

sterilization in [Li’s] home village, evidence consistent with the

conclusion of recent government reports,” and that it “clearly

satisfied the criteria for a motion to reopen.”               Id. at 1375.

             We grant Lin’s petition for review.            Save for the issue

of when the petitioner in Li gave birth to her children, the record

before us is almost identical to the record before the Eleventh

Circuit in Li.     Lin’s evidence is arguably even more supportive of

the motion, as the Board here also took administrative notice of

the 2006 Country Report, which noted that, during 2005, “officials

in . . . Fujian Province reportedly forcibly sterilized women.”

Dep’t of State, 2006 Country Reports on Human Rights Practices in

China (2007), http://www.state.gov/g/drl/rls/hrrpt/2006/78771.htm.

This represents a significant departure from previous Department of

State Country Reports, which did not report any such enforcement

activity in the Fujian Province.

             Although the Board properly considered Lin’s evidence of

changed country conditions, see Guo v. Gonzales, 463 F.3d 109, 115

(2d   Cir.   2006),     the   Board’s    decision   finding    Lin’s      evidence

insufficient to establish a change in country conditions was


                                        - 8 -
contrary to law.     Although reporting sources continue to reflect

the       Chinese   government’s      policy     prohibiting      forcible

sterilizations,     the   2006   Country   Report,    coupled   with   Lin’s

affidavit recounting her father’s assertions of several forced

sterilizations, evidence the type of change in country conditions

necessary to support reopening.3

             Accordingly, we grant Lin’s petition for review, vacate

the Board’s order denying Lin’s motion to reopen, and remand this

case to the Board for further proceedings.4          We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would not

aid the decisional process.



                                           PETITION GRANTED AND REMANDED




      3
      Notably, though Lin’s original asylum application was
predicated on her opposition to China’s family planning policy, she
did not claim a fear of forcible sterilization because she had not,
at that time, violated the policy.
      4
      Because we grant Lin’s petition for review on this issue, we
do not address her alternative contention that the Board erred in
concluding she could not file a successive asylum application.

                                   - 9 -
