                                                                               [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                             ELEVENTH CIRCUIT
                                            No. 10-15707                        JUNE 30, 2011
                                                                                 JOHN LEY
                                        Non-Argument Calendar                      CLERK
                                      ________________________

                                           Agency No. A088-527-961


HANG ZHENG,

llllllllllllllllllllllllllllllllllllllll                                                    Petitioner,

                                                   versus

U.S. ATTORNEY GENERAL,

                                                       llllllllllllllllllllllllllllllllllllllllRespondent.

                                     ________________________

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

                                               (June 30, 2011)

Before BARKETT, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
       Hang Zheng, a native and citizen of China, petitions for review of the Board

of Immigration Appeals’ (“BIA’s”) denial of his motion to reopen his application

for asylum, pursuant to 8 C.F.R. § 1003.2(c). In May 2010, the BIA denied

Zheng’s original application for asylum, which sought relief based on China’s

family planning policy and the forced sterilization of his wife.1 In August 2010,

Zheng filed a timely motion to reopen, alleging that, after his hearing before the

immigration judge, he adopted the spiritual practice of Falun Gong, for which he

would face persecution if he returned to China. In support, he submitted affidavits

demonstrating his association with Falun Gong, as well as background materials

documenting China’s coercive policy towards Falun Gong in 2007 and 2008. The

BIA denied Zheng’s motion.

       A motion to reopen “must be accompanied by the appropriate application

for relief and all supporting documentation” and “shall not be granted unless it

appears to the Board that evidence sought to be offered is material and was not

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

8 C.F.R. § 1003.2(c)(1). To prove that the new evidence is “material,” the alien

must establish “that, if the proceedings were opened, the new evidence would



       1
         While Zheng’s motion to reopen was pending, we denied his petition for review of this
ruling. Zheng v. U.S. Att’y Gen., 406 Fed.Appx. 464 (11th Cir. 2010) (unpublished).

                                              2
likely change the result in the case.” Jiang v. U.S. Att’y Gen., 568 F.3d 1252,

1256-57 (11th Cir. 2009). Thus, the BIA has the discretion to deny a motion to

reopen for at least three reasons: “1) failure to establish a prima facie case of

eligibility for asylum or withholding of removal; 2) failure to introduce evidence

that was material and previously unavailable; and 3) a determination that despite

the alien’s statutory eligibility for relief, he or she is not entitled to a favorable

exercise of discretion.” Li v. U.S. Att’y Gen., 488 F.3d 1371, 1374-75 (11th Cir.

2007) (alterations and quotation marks omitted). We review the denial of a

motion to reopen removal proceedings for an abuse of discretion. Zhang v. U.S.

Att’y Gen., 572 F.3d 1316, 1319 (11th Cir. 2009). The moving party bears a

“heavy burden,” and judicial review “is limited to determining whether the BIA

exercised its discretion in an arbitrary or capricious manner.” Id.

       Zheng argues on appeal that the BIA abused its discretion in denying his

motion to reopen because he submitted new and material evidence showing his

adherence to Falun Gong and the Chinese government’s persecution of Falun

Gong practitioners. He also asserts that, contrary to the BIA’s conclusion, he did

in fact have an asylum application on file.

       On this record, we cannot say the BIA abused its discretion in denying

Zheng’s motion to reopen. First, we note that while Zheng did have an asylum


                                            3
application on file, this original application sought relief based solely on China’s

family planning policy, and Zheng failed to accompany his motion to reopen with

a new asylum application based on his changed circumstances. Even if this alone

was not a reason to deny Zheng’s motion to reopen, the BIA did not clearly err in

finding that none of the background evidence submitted by Zheng concerning

China’s country conditions was “new,” as it was available at the time of his

original hearing. Finally, the BIA did not clearly err in finding that the evidence

Zheng submitted would be unlikely to change the result in this case, as it provided

no information about the Chinese government’s current policy towards Falun

Gong, as necessary to establish a well-founded fear of persecution based on his

status as a Falun Gong practitioner. Accordingly, we deny Zheng’s petition for

review.

      PETITION FOR REVIEW DENIED.




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