            Case: 11-15318    Date Filed: 09/26/2012   Page: 1 of 6

                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                       ________________________

                              No. 11-15318
                          Non-Argument Calendar
                        ________________________

                          Agency No. A088-524-602




QIULING LIN,

                                                                       Petitioner,

                                    versus

U.S. ATTORNEY GENERAL,

                                                                      Respondent.

                        ________________________

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

                             (September 26, 2012)

Before HULL, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

     Qiuling Lin, a Chinese national, appeals the Board of Immigration
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Appeals’s (“BIA”) denial of her second motion to reopen her removal

proceedings. She contends that the BIA should have granted her motion based on

ineffective assistance of counsel, arguing that her submissions were sufficient to

comply with the procedural requirements. She also argues that the BIA should

have granted her motion because of changed country conditions in China.

                                         I.

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

Montano Cisneros v. U.S. Att’y Gen., 514 F.3d 1224, 1226 (11th Cir. 2008). This

review is limited to determining whether the BIA has exercised its administrative

discretion and whether the exercise of that discretion was arbitrary or capricious.

Id. When the BIA did not expressly adopt the immigration judge’s (“IJ”)

reasoning, we review only the BIA’s decision. Zhang v. U.S. Att’y Gen., 572 F.3d

1316, 1319 (11th Cir. 2009). If a party fails to make an argument in its opening

brief, we deem that argument abandoned. Access Now, Inc. v. Southwest Airlines

Co., 385 F.3d 1324, 1330 (11th Cir. 2004). Here we conclude that the BIA did not

abuse its discretion in denying Lin’s motion to reopen because, on this record, no

exception to the timeliness and numerosity requirements applies.

      A party may file only one motion to reopen, which must be filed “no later

than 90 days after the date on which the final administrative decision was rendered

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in the proceeding sought to be reopened.” 8 C.F.R. § 1003.2(c)(2). Such motions

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

Among the grounds upon which an alien may rely in such a motion is ineffective

assistance of counsel. Dakane v. U.S. Att’y Gen., 399 F.3d 1269, 1273 (11th Cir.

2005).

       Here, Lin filed a second motion to reopen her immigration proceedings in

May 2011. This was nearly two years after the IJ rendered a decision in July 2009

and, therefore, exceeded the time limitation set forth in 8 C.F.R. § 1003.2(c)(2).

Further, because Lin had already filed one motion to reopen, her 2011 motion was

also numerically barred. 8 C.F.R. § 1003.2(c)(2). These time and numerical

limitations are not subject to equitable tolling in this case.1 See Abdi, 430 F.3d at

1150. There are, however, several exceptions to the one motion and ninety day

limit. See generally 8 C.F.R. § 1003.2(c)(3).



       1
                 Citing Abdi and Anin v. Reno, 188 F.3d 1273 (11th Cir. 1999), the government argues
that the ninety day filing time is mandatory and jurisdictional. We need not decide that question
because Lin’s second motion to reopen in this case was filed in May 2011, a year and ten months
after the IJ’s July 15, 2009 decision. This motion accused Lin’s attorney of ineffective assistance
of counsel for failing to appeal that July 2009 decision. We cannot conclude that the BIA abused
its discretion in denying a motion to reopen that is so untimely (based on conduct almost two years
before) and one which provides no adequate explanation of the reasons for the extended delays.
Thus, we need not evaluate whether the BIA correctly applied Lozado in holding that Lin’s attorney
did not render ineffective assistance. See Matter of Lozado, 19 I. & N. Dec. 637 (BIA 1988). For
the same reason, there is no need for the remand which Lin seeks to develop evidence of prejudice
from counsel’s performance.

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                                          II.

      The time and numerical limitations discussed above do not apply to a

motion to reopen with new evidence “based on changed circumstances arising in

the country of nationality . . . if such evidence is material and was not available

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

8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). An alien seeking to

show that such evidence is material, however, “bears a heavy burden and must

present evidence that demonstrates that, if the proceedings were opened, the new

evidence would likely change the result in the case.” Jiang v. U.S. Att’y Gen., 568

F.3d 1252, 1256–57 (11th Cir. 2009). A change in personal circumstances alone

does not entitle an alien to this exception. Zhang, 572 F.3d at 1319.

      The BIA has the discretion to deny a motion to reopen for at least three

reasons: (1) failure to establish a prima facie case for asylum or withholding of

removal; (2) failure to introduce evidence that was material and previously

unavailable; and (3) a determination that despite statutory eligibility for relief, an

alien was not entitled to a favorable exercise of discretion. Li v. U.S. Att’y Gen.,

488 F.3d 1371, 1374-75 (11th Cir. 2007).

      The BIA is not required to discuss every piece of evidence presented. See

Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1374 (11th Cir. 2006) (reviewing an IJ’s

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denial of an application for withholding of removal after the BIA adopted the

decision without opinion). Rather, it must only “consider the issues raised and

announce its decision in terms sufficient to enable a reviewing court to perceive

that it has heard and thought and not merely reacted.” Id. (quotation omitted).

However, the BIA is required to give reasoned consideration to the evidence and

make “adequate findings.” See Mezvrishvili v. U.S. Att’y Gen., 467 F.3d 1292,

1295 (11th Cir. 2006) (remanding case for the BIA to make adequate findings).

      First, Lin has abandoned any arguments about the BIA’s conclusions

regarding authentication of village documents, the notice addressed to her, and

letters submitted by relatives on her behalf, because she failed to make them in her

brief. Access Now, Inc., 385 F.3d at 1330 (“[T]he law is by now well settled in

this Circuit that a legal claim or argument that has not been briefed before the

court is deemed abandoned and its merits will not be addressed.”). Regarding the

other materials, including State Department cables and various 2010 reports, we

conclude that the BIA did not abuse its discretion in concluding that these

documents did not show changed country conditions.

      The State Department cables, for example, do not provide any information

to show that the country conditions in China have changed between 2009 and

2011. Lin submitted government cables showing that “China’s coercive practices

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include involuntary abortion to control fertility and regulate the population” and

that a program in China supported or participated “in the management of a

program of coercive abortion resulting from China’s birth limitation policies and

practices.” But this cable appears to have been drafted and sent in 2002; thus, it

cannot show any changed conditions between 2009-2011. Additionally, the 2010

Commission Report submitted by Lin shows that coercive practice “continue in

China,” which does not meet Lin’s heavy burden of demonstrating that conditions

have changed.2

       We hold that the BIA did not abuse its discretion by denying Lin’s second

motion to reopen.

       PETITION DENIED.




       2
               Lin also argues that the BIA failed to address some of her evidence she submitted
when making its asylum determination based on religious persecution. But again, the BIA is not
required to discuss all evidence presented, and we hold that the BIA “announce[d] its decision in
terms sufficient to enable a reviewing court to perceive that it has heard and thought and not merely
reacted.” Tan, 446 F.3d at 1374.

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