                                                                   [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________                   FILED
                                                              U.S. COURT OF APPEALS
                                  No. 09-16495                  ELEVENTH CIRCUIT
                                                                SEPTEMBER 16, 2010
                              Non-Argument Calendar
                                                                     JOHN LEY
                            ________________________
                                                                      CLERK

                              Agency No. A095-916-178

FANG FANG LIN,
a.k.a. Fangfang Lin,
a.k.a. Lin Fang Fang,

                                                                           Petitioner,

                                        versus

U.S. ATTORNEY GENERAL,

                                                                         Respondent.


                            ________________________

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

                                 (September 16, 2010)

Before EDMONDSON, MARTIN and KRAVITCH, Circuit Judges.

PER CURIAM:
       Petitioner Fang Fang Lin, a native and citizen of China, seeks review of the

Board of Immigration Appeals’ (“BIA”) order denying her third motion to reopen

removal proceedings.1

       In 2002, Lin arrived in the United States without valid documentation and

the former Immigration and Naturalization Service (“INS”) – now the Department

of Homeland Security (“DHS”) – served Lin with a Notice to Appear alleging that

she was removable (1) as an immigrant who was not in possession of valid entry

documents, 8 U.S.C. § 1182(a)(6)(A)(i), and (2) as an alien who, by fraud or

willfully misrepresenting a material fact, sought to procure or procured entry

documents, 8 U.S.C. § 1182(a)(6)(C)(i).

       In September 2002, Lin filed an application for asylum, withholding of

removal, and CAT relief based on political opinion, specifically opposition to

China’s birth control policies. Lin alleged that she and her boyfriend wanted to get

married and have a child, but they were not permitted to do so under China’s birth

control policies. She explained that if they married illegally and conceived a child,

the state would impose a substantial fine that they could not afford to pay, would

       1
          The only order presently before us is the denial of this third motion to reopen. Lin did not
file a petition for review within 30 days of the issuance of the original order of removal, the denial
of her first motion to reopen, or the denial of her second motion to reopen. 8 U.S.C. § 1252(b)(1).
This limit is “mandatory and jurisdictional,” Dakane v. U.S. Att’y Gen., 399 F.3d 1269, 1272 n. 3
(11th Cir. 2005), and the filing of a motion to reopen does not alter the need to file a separate
petition appealing the removal order, Stone v. INS, 514 U.S. 386, 394, 115 S.Ct. 1537, 1543-44, 131
L.Ed.2d 465 (1995). Accordingly, our jurisdiction is limited to a review of the denial of Lin’s third
motion to reopen her removal proceedings.
                                                    2
force Lin to undergo an abortion, and would force the couple to use birth control in

the future. Lin also was afraid that the state would jail her for leaving China

illegally. During an asylum hearing in December 2002, however, Lin gave an

account different from the one in her asylum application, claiming that the state

fined her 10,000 yuan and forced her to undergo an abortion in China in May 2002,

when she was three months pregnant

         The IJ denied Lin’s application, finding that Lin’s testimony lacked

credibility. Lin appealed to the BIA, which adopted and affirmed the IJ’s removal

order in 2004. Lin did not file a petition for review of the removal order with this

court.

         Instead, less than thirty days later, Lin filed a pro se motion for

reconsideration, requesting reopening based on changed circumstances because she

was five-months pregnant and was “facing a forced abortion” upon her return. She

attached supporting documentation of her pregnancy and the 1998 Congressional

testimony of a former Fujian family planning administrator. The BIA construed

the motion as a motion to reopen removal proceedings and denied it because Lin

failed to provide any evidence that “the future mother of a United States citizen

child” would suffer persecution under China’s family planning policy. Lin did not

seek review of that order.

         In February 2007, Lin filed a second pro se motion to reopen her removal
                                              3
proceedings. She alleged changed personal circumstances because she had given

birth to two children in the United States. She also alleged changed country

conditions, claiming that China’s family-planning policy had become “extremely

unfavorable for overseas returnees with more than one child,” and would result in

her forced sterilization. In support, Lin cited, but did not submit, a State

Department Country Profile and the 2004 Country Report.

      The BIA denied Lin’s second motion to reopen in July 2007, concluding that

the birth of her two children, alone, amounted to changed personal circumstances

that did not satisfy an exception to the time or number restrictions. The BIA noted

that Lin failed to submit any evidence regarding the current family-planning

conditions in China. The BIA apparently took judicial notice of the 2007 Profile of

Asylum Claims and Country Conditions for China, which stated that American

officials were unaware of an official policy requiring sterilization for parents of

children born in the United States. Thus, the BIA concluded that Lin would not

have a reasonable likelihood of success on the merits upon reopening, either based

on a claim of forced sterilization or persecutory fines. Lin did not seek review of

that order.

      In 2009, Lin, through counsel, filed the motion to reopen currently before

this court. First, Lin claimed that (a) there was evidence that officials in her home

province of Fujian “[had] stepped up the enforcement of the family policy,”
                                           4
(b) multiple relatives were forcibly sterilized and severely fined in the last two

years, (c) there was a pattern or practice of persecution against parents of multiple

children, and (d) she had married and had two children in the United States since

the 2002 removal hearing.

      Second, Lin claimed that she feared religious persecution because she

recently converted to Christianity and would practice in an underground house

church upon her return.

      Lin submitted a number of background exhibits that were unavailable at the

time of her asylum hearing in 2002, but some of which were available at the time

she filed her second motion to reopen in February 2007. Lin also submitted

numerous exhibits dated after February 2007 and various corroborating documents.

Nevertheless, in a supporting affidavit, Lin conceded that her children might not be

treated as Chinese citizens and “might not be allowed to have household

registration since they were born in the U.S.,” but she argued that she would be

forced to pay more money for them to receive basic services. Lin also submitted

background evidence on the persecution of underground Christians in China.

      The BIA denied Lin’s third motion to reopen in November 2009, finding

that it exceeded both the time and number limitations. The BIA further found that

Lin failed to show that she met the changed country conditions exception. It

concluded, without elaboration, that “[t]he evidence that she offer[ed] [did] not
                                           5
demonstrate a material change in the enforcement of family planning policy nor in

the regulation of religion in China.” Finally, the BIA found that Lin was not

entitled to reopening based on changed personal circumstances, and that reopening

was not warranted as a matter of discretion.

      Lin filed a timely petition for review from that ruling, arguing that the BIA

abused its discretion by denying her motion to reopen because (1) she

demonstrated a material change in circumstances in connection with China’s one-

child family-planning policy, which showed that she likely will suffer sterilization

upon returning to China with her two American children, and (2) she demonstrated

a material change in China’s religious policy, which showed that she likely will

suffer persecution upon her return because she intends to practice Christianity in an

underground house church. We address each issue in turn.

                                          I.

      We review “the BIA’s denial of a motion to reopen for an abuse of

discretion.” Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1149 (11th Cir. 2005). The

BIA abuses its discretion when its decision is arbitrary or capricious. Id.

      An alien generally may file one motion to reopen her removal order.

8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.23(b)(3). Motions to reopen may be

granted if there is new evidence that is material and was not available and could

not have been discovered or presented at the removal hearing. See 8 C.F.R.
                                          6
§§ 1003.2(c)(1), 1003.23(b)(3). The movant has the “heavy burden” of presenting

evidence that likely would change the result in the case. Ali v. U.S. Att’y Gen., 443

F.3d 804, 813 (11th Cir. 2006) (quotation omitted).

      Ordinarily, a motion to reopen “must be filed no later than 90 days after the

date on which the final administrative decision was rendered in the proceeding

sought to be reopened.” 8 C.F.R. § 1003.2(c)(2); 8 U.S.C. § 1229a(c)(7)(C)(i).

The 90-day filing deadline does not apply, however, to an alien who files a motion

to reopen predicated upon “changed country conditions arising in the country of

nationality or the country to which removal has been ordered, if such evidence is

material and was not available and would not have been discovered or presented at

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

§ 1003.2(c)(3)(ii) (stating that the time limit does not apply if the alien shows

material changed circumstances based on evidence that “was not available and

could not have been discovered or presented at the previous hearing”).

      Forced abortions and sterilizations are considered persecution on account of

political opinion, and “a person who has a well founded fear that he or she will be

forced to undergo such a procedure . . . shall be deemed to have a well founded

fear of persecution on account of political opinion,” as necessary to satisfy the

standard for asylum. 8 U.S.C. § 1101(a)(42)(B). Even so, to establish eligibility

for withholding of removal, a petitioner must prove that it is “more likely than not
                                           7
[that] she will be persecuted or tortured” based on a protected ground upon

returning to her country. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1232

(11th Cir. 2005) (quotation omitted); 8 U.S.C. § 1231(b)(3). Similarly, to qualify

for CAT relief, the applicant carries the burden of proof to establish “that it is more

likely than not that . . . she would be tortured if removed to the proposed country of

removal.” Sanchez Jimenez v. U.S. Att’y Gen., 492 F.3d 1223, 1239 (11th Cir.

2007) (quotation omitted); 8 C.F.R. § 1208.18(a)(1)-(3).

      Although we have held that previously unavailable evidence alleging a

recent campaign of forced sterilization in the petitioner’s home province was

sufficient to satisfy the changed circumstances requirement in an untimely motion

to reopen, Li v. U.S. Att’y Gen., 488 F.3d 1371, 1375 (11th Cir. 2007), here some

of the evidence Lin submitted was available at the time she filed her second motion

to reopen in 2007. Even assuming that the BIA was not precluded from

considering such evidence, Lin failed to show a material change in country

conditions related to China’s family planning policy as measured from the date of

her 2002 removal hearing. Specifically, although the evidence in the record could

be viewed as demonstrating a pattern of increased physical coercion, Lin failed to

show that such a change in country conditions was material to her situation. Thus,

the BIA did not abuse its discretion by concluding that the evidence was not likely

to change the result in Lin’s removal proceedings. Accordingly, we deny Lin’s
                                           8
petition in this respect.

                                          II.

       We review our subject matter jurisdiction de novo. Amaya-Artunduaga v.

U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). “[A]bsent a cognizable

excuse or exception,” we normally “lack jurisdiction to consider a claim raised in a

petition for review unless the petitioner has exhausted his administrative remedies

with respect thereto.” Id. This requirement ensures that the BIA has a full

opportunity to consider “the niceties and contours of the relevant arguments.” Id.

Thus, where the BIA addresses, sua sponte, an issue that an alien does not raise in

his notice of appeal or supporting brief, we “cannot say the BIA fully considered

the petitioner’s claims, as it had no occasion to address the relevant arguments.”

Id. at 1250-51. Accordingly, we lack jurisdiction to review such arguments on

appeal. Id.

       Here, because Lin failed to exhaust her claim that, based on changed country

conditions, she likely will suffer religious persecution upon her return to China, we

lack jurisdiction to review this claim. Therefore, we dismiss her petition in this

respect.

       PETITION DISMISSED IN PART AND DENIED IN PART.




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