           Case: 15-11856   Date Filed: 02/17/2016   Page: 1 of 10


                                                      [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 15-11856
                         Non-Argument Calendar
                       ________________________

                        Agency No. A077-013-592



GUANG LIN CHANG,

                                                             Petitioner,

                                  versus

U.S. ATTORNEY GENERAL,

                                                             Respondent.

                       ________________________

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

                            (February 17, 2016)

Before JULIE CARNES, JILL PRYOR and FAY, Circuit Judges.

PER CURIAM:
             Case: 15-11856     Date Filed: 02/17/2016   Page: 2 of 10


      Guang Lin Chang, a native and citizen of China, petitions for review of the

order of the Board of Immigration Appeals (“BIA”) denying his motion to reopen

his removal proceedings based upon lack of notice and changed country

conditions. After careful review, we deny Chang’s petition.

                                         I.

      Chang entered the United States in March 2001, was detained upon arrival,

and was served with a notice to appear. The notice charged Chang as removable

under 8 U.S.C. § 1182(a)(7)(A)(i)(I), as an immigrant not in possession of a valid

entry document. The notice specified that the time and date of Chang’s removal

proceedings before an immigration judge (“IJ”) were to be determined, stated that

future notices would be mailed to the address he provided to immigration officials,

and warned that the IJ could order him removed if he failed to appear at his

hearing. Chang completed an “Alien Address” form, listing his address as 2141 S.

China Place, Chicago, Illinois, 60616. Chang was released from custody pending

removal proceedings.

      On May 2, 2001, the immigration court mailed a Notice of Hearing in

Removal Proceedings to the address Chang provided immigration officials

indicating that his hearing was scheduled on August 9, 2001. Chang failed to

appear at the hearing, and the IJ, conducting the proceedings in absentia pursuant




                                         2
              Case: 15-11856    Date Filed: 02/17/2016    Page: 3 of 10


to 8 U.S.C. § 1229a(b)(5)(A), found Chang to be removable as charged and

ordered him removed to China.

      On July 2, 2002, Chang filed a counseled motion to reopen his removal

proceedings, arguing that he never received notice of the date of his hearing. In an

affidavit filed in support of his motion, Chang stated that, when he first was

released from custody in March 2001, he moved in with his brother at the address

he provided to immigration officials. But, he explained, he moved to New York in

October 2001 and accordingly never received the notice mailed to his brother’s

address. If he had received the notice, he stated, he would have appeared and

pursued a claim for asylum.

      The IJ denied Chang’s motion to reopen, concluding that he received proper

notice because he conceded he was living with his brother at the Chicago address

he provided to immigration officials until October 2001, and the Notice of Hearing

in Removal Proceedings was mailed in May 2001. Chang appealed to the BIA,

which entered a dismissal when Chang failed to file an appellate brief. Chang did

not appeal the BIA’s dismissal to this Court.

      In November 2014, Chang filed with the BIA a second motion to reopen

removal proceedings. In his motion, he contended that the immigration court

violated his right to due process because he never actually received notice of the

date of his hearing before the IJ. Thus, he argued, the order of removal should be


                                          3
             Case: 15-11856     Date Filed: 02/17/2016   Page: 4 of 10


rescinded. Chang asserted that his motion to reopen was not untimely despite the

general 90 day deadline to file such a motion because, under 8 C.F.R. § 1003.23,

he was entitled to file a motion to reopen at any time provided he established that

he never received proper notice. He also asked the BIA to exercise its authority to

sua sponte reopen his removal proceedings.

      Alternatively, Chang argued that his removal proceedings should be

reopened based on changed country conditions in China. Chang alleged that he

had joined the China Democracy Party (“CDP”) since his 2001 removal

proceedings, and asserted that, if he were removed to China, he would face

persecution because of his political opinion. In support, Chang noted that the

Chinese government incarcerated political activists, including CDP leaders, and

had increased monitoring of political activism of its citizens. He submitted

evidence in support, including documents demonstrating his involvement in the

CDP; news articles and a Human Rights Watch report discussing the imprisonment

of CDP leaders and activists; the U.S. State Department’s 2013 Human Rights

Report for China (the “2013 State Department Report”) reporting on the

imprisonment of CDP leaders and on China’s policy of internet censorship; and

Amnesty International’s 2013 Annual Report indicating that Chinese authorities

employed the country’s criminal justice system to punish political activists.




                                          4
               Case: 15-11856    Date Filed: 02/17/2016    Page: 5 of 10


      The BIA denied Chang’s motion to reopen. It first noted that the motion to

reopen was untimely by several years and failed to qualify for any exception that

would excuse the untimeliness. It concluded that Chang had not established

changed country conditions because his decision to join CDP merely was a

changed personal circumstance, and in any event the evidence Chang submitted

did not demonstrate that conditions in China had worsened for CDP members or

that the Chinese government knew of Chang’s involvement in the organization. As

to Chang’s lack of notice argument, the BIA noted that Chang had already raised,

and the IJ had rejected, the issue in his first motion to reopen. Even if it had not

been raised previously, the BIA concluded that Chang’s notice challenge failed

because the hearing notice was sent to the correct address and Chang waited more

than 11 years to file the second motion to reopen. Finally, the BIA declined to

exercise its discretionary authority to sua sponte reopen Chang’s removal

proceedings.

      Chang now petitions this Court for review.

                                          II.

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

Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256 (11th Cir. 2009). Review is limited

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

capricious manner. Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1319 (11th Cir.


                                           5
                Case: 15-11856        Date Filed: 02/17/2016       Page: 6 of 10


2009). The BIA’s factual findings are considered “conclusive unless a reasonable

factfinder would be compelled to conclude to the contrary.” Lonyem v. U.S. Att’y

Gen., 352 F.3d 1338, 1340 (11th Cir. 2003).

       The BIA may deny a motion to reopen on any one of three grounds: (1) the

petitioner failed to establish a prima facie case for relief; (2) the petitioner failed to

present evidence that was material and previously unavailable; or (3) the BIA

determines that, despite eligibility for relief, the petitioner is not entitled to a

favorable exercise of discretion. Jiang, 568 F.3d at 1256-57.

                                                III.

       Chang contends that the BIA erred in denying his motion to reopen based on

lack of notice and changed country conditions. 1 Ordinarily, a petitioner may file

only one motion to reopen, and must do so no later than 90 days after the final

order of removal is entered. 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2). It is

undisputed that Chang’s motion to reopen was untimely under this subsection. But

if, as here, a petitioner is ordered removed in absentia and shows he never received

notice of the removal proceeding, he is not bound by the time limitation and may

file a motion to reopen at any time. 8 U.S.C. § 1229a(b)(5)(C)(ii); 8 C.F.R.


       1
          The BIA’s decision dismissing Chang’s appeal from the denial of his first motion to
reopen is not before this Court for review. His petition for review of that decision was due 30
days after the BIA’s denial. See 8 U.S.C. § 1252(b)(1). This time limit is mandatory and
jurisdictional and is not subject to equitable tolling. Chao Lin v. U.S. Att’y Gen., 677 F.3d 1043,
1045 (11th Cir. 2012). Thus, we review only the BIA’s denial of Chang’s second motion to
reopen.
                                                 6
             Case: 15-11856     Date Filed: 02/17/2016   Page: 7 of 10


§ 1003.23(b)(4)(ii). A petitioner may, however, “file only one motion” alleging

lack of notice. Id. The language of this regulation is plain. See Montano Cisneros

v. U.S. Att’y Gen., 514 F.3d 1224, 1228 (11th Cir. 2008).

      Here, Chang’s first motion to reopen alleged that he failed to appear because

he did not receive notice of his 2001 hearing. He accordingly was barred from

raising this issue in any subsequent motion to reopen. As such, the BIA did not

abuse its discretion in denying Chang’s second motion to reopen based on lack of

notice as numerically barred by the plain language of 8 C.F.R. § 1003.23(b)(4)(ii).

      Chang also challenges the BIA’s denial of his motion to reopen based on

changed country conditions. The 90 day deadline to file a motion to reopen, which

Chang indisputably failed to meet, does not apply where the motion is based on

changed country conditions arising in the petitioner’s country of nationality and the

petitioner seeks asylum, withholding of removal, or relief under the Convention

Against Torture. 8 C.F.R. § 1003.23(b)(4)(i). A motion based on changed country

conditions must demonstrate that the changed conditions are material and could not

have been discovered at the time of the removal proceedings. Id. “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, 568 F.3d at 1256-57.




                                         7
              Case: 15-11856     Date Filed: 02/17/2016   Page: 8 of 10


      We conclude the BIA did not abuse its discretion in denying Chang’s motion

based on changed country conditions. As the BIA noted, the evidence Chang

submitted reported that, rather than imposing new restrictions on CDP activists, the

Chinese government has never approved of the CDP or its activities since the

organization’s inception in 1998.

      Chang does not challenge this conclusion, but argues that, even so, the

evidence he submitted demonstrated an increased risk that the Chinese government

would discover his activities. Specifically, he first argues that the BIA failed to

consider the fact, asserted in a statement he attached to his asylum application, that

his parents had been investigated and forced to flee their home in China because of

his CDP involvement. Although it is true that the BIA did not specifically

reference Chang’s allegation, it is clear from the order that the BIA considered it.

In evaluating “the evidence proffered with the respondent’s motion,” the BIA

concluded that the motion “contains no independent evidence supporting his

assertion that the Chinese government is aware of his CDP activities in this

country, and it provides no details regarding the circumstances surrounding such

allegation.” BIA Ord. at 1-2. We are satisfied based on this discussion that the

BIA gave reasoned consideration to Chang’s asylum supporting statement. See

Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1374 (11th Cir. 2006) (“Where the [BIA]

has given reasoned consideration to the petition, and made adequate findings, we


                                          8
              Case: 15-11856      Date Filed: 02/17/2016    Page: 9 of 10


will not require that it address specifically. . . each piece of evidence the petitioner

presented.” (internal quotation marks omitted)). And we find no abuse of

discretion in the BIA’s decision to discount the statement because it was undetailed

and uncorroborated. See Yen Zheng Zheng v. Mukasey, 546 F.3d 70, 72 (1st Cir.

2008) (noting that, absent substantiation, a petitioner’s affidavit may have limited

evidentiary value); see also Yang v. U.S. Att’y Gen., 418 F.3d 1198, 1201 (11th

Cir. 2005) (“The weaker an applicant’s testimony, . . . the greater the need for

corroborative evidence.”).

      Second, Chang contends he proffered evidence showing that the Chinese

government has since 2001 increasingly restricted and monitored CDP activity on

the internet. The BIA rejected this assertion, concluding that “the submitted

evidence does not reveal . . . that China’s policy towards either published materials

on the internet or traditional media or returning citizens who participated in pro-

democracy activities abroad has changed.” BIA Ord. at 1. Again, we cannot say

this was an abuse of discretion. The evidence Chang submitted, including the 2013

State Department Report, which Chang cites in his appellate brief, demonstrated at

most that the Chinese government had increased efforts to monitor activity of and

restrict access to information to individuals within the country. Chang’s claim is

distinct from this evidence: that the Chinese government is increasingly restricting

and monitoring CDP activity outside the country (and then punishing returning


                                            9
             Case: 15-11856    Date Filed: 02/17/2016   Page: 10 of 10


citizens upon their return to China for that conduct). He submitted no material

evidence to that effect to the BIA. Thus, the BIA was entitled to conclude that

Chang had not shown that the Chinese government might persecute him based on

his internet activity conducted abroad. 8 C.F.R. § 1003.23(b)(4)(i); Jiang, 568

F.3d at 1256-57.

      The BIA was within its discretion to deny Chang’s motion to reopen based

on lack of notice and changed country conditions. Accordingly, we deny his

petition for review.

      PETITION DENIED.




                                        10
