                                                             [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                             SEPTEMBER 30, 2009
                            No. 09-10259                      THOMAS K. KAHN
                        Non-Argument Calendar                     CLERK
                      ________________________

                        Agency No. A077-297-106

MEI SHAO,


                                                                      Petitioner,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                    Respondent.


                      ________________________

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

                           (September 30, 2009)

Before TJOFLAT, BLACK and PRYOR, Circuit Judges.

PER CURIAM:
       Petitioner Mei Shao, a native and citizen of China, through counsel, seeks

review of a Board of Immigration Appeals (BIA) order denying her second motion

to reopen its previous decision dismissing her appeal of the Immigration Judge’s

(IJ) final removal order. The IJ’s order denied Shao’s claims for asylum and

withholding of removal under the Immigration and Nationality Act (INA), and

relief under the United Nations Convention on Torture and other Cruel, Inhuman

or Degrading Treatment or Punishment (CAT). On appeal, Shao argues the BIA

committed legal error in denying her motion to reopen by failing to consider her

evidence appropriately. She submits the evidence was sufficient to establish

changed country conditions in China with respect to its enforcement of the

one-child policy.1

       “We review the denial of a motion to reopen removal proceedings for abuse

of discretion.” Li v. U.S. Att’y Gen., 488 F.3d 1371, 1374 (11th Cir. 2007). “Our

review is limited to determining whether there has been an exercise of

administrative discretion and whether the matter of exercise has been arbitrary or




       1
          Shao contends the BIA committed legal error in failing to distinguish her case from the
BIA’s decisions in In re S-Y-G, 24 I.&N. Dec. 247 (BIA 2007), and In re J-W-S-, 24 I.&N. Dec.
185 (BIA 2007). We do not address this argument because the BIA did not rely on these
decisions in denying her second motion to reopen. Shao also argues the BIA abused its
discretion in failing to consider her pending I-485 adjustment application. We do not address
this argument because it does not pertain to whether she has shown a change in country
conditions that would enable the BIA to grant her motion to reopen.

                                                2
capricious.” Montano Cisneros v. U.S. Att’y Gen., 514 F.3d 1224, 1226 (11th Cir.

2008).

         An alien may file one motion to reopen removal proceedings and such

motion generally must be filed within 90 days of the date of the BIA’s final

administrative removal order. 8 U.S.C. § 1229a(c)(7)(A), (C)(i). A motion to

reopen will not be subject to the time and numerical bars if the motion seeks

asylum or withholding of removal and is “based on 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). “An alien who attempts to show that the evidence is material

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).

         In Li, we held the BIA abused its discretion in denying Li’s motion to reopen

her removal proceedings based on its finding she failed to establish changed

country conditions in China. 488 F.3d at 1375, 1377.2 Li, a native and citizen of

China and a mother of two children, at least one of whom was born in the United

         2
          This Court reached the same result in Jiang, noting the case was “startlingly like the
case of Li” and finding “no discernable difference between the evidence presented in Li and the
evidential foundation” before it in Jiang. Jiang, 568 F.3d at 1257-58.
                                                 3
States, sought to reopen proceedings based on previously unavailable evidence that

Chinese officials in her home village in the Fujian Province were enforcing a

one-child policy through the use of forced sterilization. Id. at 1372-73. In support

of her claim, Li submitted, inter alia, the following evidence: (1) her own affidavit,

reporting second-hand accounts of forced sterilization and abortion in her village in

the previous year; (2) her mother’s affidavit, reporting family planning

enforcement had become “more severe” in their village, sterilizations “were more

common than before,” and three women from their village recently had been

forcibly sterilized after giving birth to their second child; (3) the 2003 U.S. State

Department Country Report on China, which was available at the original removal

hearing, indicating the one-child policy was more relaxed in rural areas, but

couples with two children were “usually pressured to undergo sterilization”; (4) the

2004 Country Report, which was not available at the original removal hearing,

indicating couples with two children were “often pressured to undergo

sterilization”; and (5) the 2005 Country Report, also unavailable at the original

hearing, indicating forced sterilization and abortion were prevalent in rural

provinces. Id. at 1373.

      We noted the BIA “found neither Li’s affidavit nor her mother’s affidavit

incredible.” Id. at 1375. Next, we noted the background materials on China

supported Li’s fear that officials in the Fujian Province had “incentives and
                                            4
discretion” to sterilize women with more than one child. Id. We held “Li’s

evidence of a recent campaign of forced sterilization in her home village, evidence

consistent with the conclusion of recent government reports, clearly satisfied the

criteria for a motion to reopen her removal proceedings.” Id. Finally, we held the

BIA erroneously concluded Li failed to establish a policy of persecuting women

with two foreign-born, as opposed to native, children, as the distinction was not

supported by any evidence in the record. Id. at 1376.

       Here, the BIA did not abuse its discretion in denying Shao’s second motion

to reopen. Unlike the petitioner in Li, who supplied evidence showing an escalation

of the enforcement of the one-child policy, Shao offered no evidence supporting

her assertion that enforcement of the one-child policy through forced sterilizations

has increased in China since the time of the BIA’s August 12, 2005, decision in the

original asylum proceedings, or its December 28, 2007, order denying her first

motion to reopen.3 In support of her second motion to reopen, Shao primarily

relies on an Administrative Notice to establish a change in China’s country

conditions. The Administrative Notice specifically provides she will be subjected


       3
          To the extent the BIA, in its December 28, 2007, order, considered Shao’s evidence
and found she failed to meet her burden to show a material change in China’s country conditions
that would enable it to grant her untimely motion, this Court does not have jurisdiction to revisit
that decision because it does not appear Shao filed a petition for review with this Court with
respect to that decision. See Dakane v. U.S. Att’y Gen., 399 F.3d 1269, 1272 n.3 (11th Cir.
2005) (noting that this Court did not have jurisdiction to revisit the BIA’s final order of removal
because Dakane failed to file a timely petition for review of that decision).
                                                  5
to sterilization upon her return to China. Shao’s Declaration in support of the

motion also primarily relies on the contents of the Administrative Notice.

However, in contrast to the affidavits offered in Li, the credibility of which was not

challenged, the BIA noted the Administrative Notice was “unsigned,

unauthenticated and conflicts with known country conditions evidence,” and

declined to give the document more weight than the 2007 Profile. See Li, 488 F.3d

at 1375. The BIA was entitled to discount this unauthenticated document. See

Yang v. U.S. Att’y Gen., 418 F.3d 1198, 1202 n.3 (11th Cir. 2005) (“Though we do

note that Yang submitted official documentation from the Chinese government

indicating that she underwent a ‘sterilization procedure,’ this document has not

been authenticated, and thus we cannot depend on its veracity.”). Furthermore, the

2007 Profile provided “U.S. officials in China are not aware of the alleged official

policy, at the national or provincial levels, mandating the sterilization of one

partner of couples that have given birth to two children, at least one of whom was

born abroad,” and, in the Fujian Province, children born abroad, if not registered as

permanent residents of China, are “not counted against the number of children

allowed under China’s family planning law,” but are not eligible for various social

benefits upon their return to China. The BIA was entitled to rely on these

statements in the 2007 Profile in support of its finding Shao failed to establish

China’s country conditions had changed or she would be sterilized upon her return

                                           6
to China. See Djonda v. U.S. Att’y Gen., 514 F.3d 1168, 1175 (11th Cir. 2008)

(noting this Court has held the BIA is “entitled to rely heavily on country reports”)

(quotation omitted).

      Because the BIA could reasonably conclude Shao did not provide sufficient

evidence to establish changed country conditions in China with respect to its

enforcement of the one-child policy, the BIA did not abuse its discretion in

denying her untimely and number-barred motion to reopen. Li, 488 F.3d at 1374.

Based on our review of the record and consideration of the parties’ briefs, we deny

the petition for review.

      PETITION DENIED.




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