                                                     [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________            FILED
                                                U.S. COURT OF APPEALS
                             No. 11-11131         ELEVENTH CIRCUIT
                                                      APRIL 13, 2012
                         Non-Argument Calendar
                                                       JOHN LEY
                       ________________________
                                                         CLERK

                        Agency No. A077-921-969


YAU LI LU,
                                                               Petitioner,

     versus

U. S. ATTORNEY GENERAL,
                                                              Respondent.

              _________________________________________

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

                             (April 13, 2012)

Before EDMONDSON, WILSON, and BLACK, Circuit Judges.


PER CURIAM:
      Yau Li Lu, a native and citizen of China, petitions for review of the order of

the Board of Immigration Appeals (“BIA”) dismissing his appeal of the

Immigration Judge’s (“IJ’s”) denial of his motion to reopen his removal

proceedings. Reversible error has been shown; we grant the petition and remand

for additional proceedings.

      Shortly after entering the United States in 2000, Lu was charged as

removable and -- when he failed to appear for his removal hearing -- an IJ issued

an order of removal in absentia. Lu filed a timely motion to reopen the removal

proceedings which the IJ denied.

      More than eight years later, Lu filed the instant motion to reopen his

removal proceedings. Lu asserted that newly discovered and previously

unavailable evidence established prima facie eligibility for asylum relief based on

his practice of Falun Gong. He also argued that he was exempt from the time and

numerical limitations on his motion to reopen based on changed circumstances in

China. In particular, he contended that the Chinese government recently had

begun targeting and investigating overseas Falun Gong practitioners and

threatening their relatives in China. As part of its efforts, the Chinese government

had learned that Lu was practicing Falun Gong and had delivered a written notice

to his mother in China, ordering her to tell Lu to stop practicing Falun Gong and to

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return to China for “severe punishment.” The IJ denied Lu’s motion to reopen,

and the BIA dismissed his appeal.

      We review the BIA’s decision in this case because the BIA did not

expressly adopt the IJ’s decision. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1284

(11th Cir. 2001) (noting that we review the BIA’s decision; but “[i]nsofar as the

[BIA] adopts the IJ’s reasoning, we will review the IJ’s decision as well”). We

review the BIA’s denial of a motion to reopen for abuse of discretion. Jiang v.

United States Att’y Gen., 568 F.3d 1252, 1256 (11th Cir. 2009). Our review is

limited to determining whether the BIA exercised its discretion in an arbitrary or

capricious manner. Id. “Motions to reopen in removal proceedings are

particularly disfavored.” Id. We also have an obligation to inquire sua sponte into

issues of jurisdiction. See Bender v. Williamsport Area Sch. Dist., 106 S.Ct. 1326,

1331 (1986).

      A party may file only one motion to reopen which “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 U.S.C. § 1229a(c)(7)(A),

(B). A motion to reopen must be filed within 180 days after a removal order

entered in absentia. Id. § 1229a(b)(5)(C)(i), (c)(7)(C)(iii). This time limit is

“mandatory and jurisdictional.” See Abdi v. United States, 430 F.3d 1148, 1150

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(11th Cir. 2005) (concluding that the 90-day time limit set forth in 8 C.F.R.

§ 1003.2(c)(2) for filing motions to reopen was mandatory and jurisdictional).

These numerical and time limitations do not apply, however, “when (1) an alien

files a motion to reopen that seeks asylum . . . ; (2) the motion is predicated on

changed country conditions; and (3) the changed conditions are material and could

not have been discovered at the time of the removal proceedings.” Jiang, 568 F.3d

at 1256 (citing 8 C.F.R. § 1003.23(b)(4)(i)); see also 8 U.S.C. § 1229a(c)(7)(C)(ii).

A petitioner may also avoid the numerical and time limitations if the BIA sua

sponte reopens the proceedings. See 8 C.F.R. § 1003.2(a) (providing that the BIA

“may at any time reopen or reconsider on its own motion any case in which it has

rendered a decision”).

      That Lu’s motion to reopen was both successive and filed outside the 180-

day time limit is undisputed. And the BIA declined to sua sponte reopen the

removal proceedings using its discretionary authority under section 1003.2(a).

Thus, without an exception to the time and numerical limitations, Lu’s petition is

subject to a jurisdictional bar. See Abdi, 430 F.3d at 1150.

      Although the BIA acknowledged Lu’s argument that he qualified for an

exception to the time and numerical limitations based on his evidence of changed

country conditions, the BIA failed to address or to make findings on that issue.

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Instead, the BIA dismissed Lu’s appeal based on its conclusion that he failed to

show a reasonable likelihood of success on the merits of his case. Because the

BIA failed to address the threshold jurisdictional question of whether Lu had

demonstrated changed country conditions, it lacked jurisdiction to consider the

merits of Lu’s untimely motion to reopen.

      Thus, we vacate the BIA’s decision dismissing Lu’s appeal of the IJ’s denial

of his motion to reopen; and we remand this case for a determination of whether

Lu qualified for an exception to the numerical and time limitations on his motion

to reopen based on changed country conditions in China.

      PETITION GRANTED; VACATED AND REMANDED.




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