                                                     [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                                                                FILED
                      ________________________ U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                                                             December 19, 2005
                       Nos. 04-15858 & 05-11789
                                                         THOMAS K. KAHN
                        Non-Argument Calendar                CLERK
                      ________________________

                        Agency No. A79-781-156

CHAO JIN CHEN,


                                                                        Petitioner,

                                  versus

U.S. ATTORNEY GENERAL,
U.S. DEPARTMENT OF JUSTICE,
Michael Chertoff,
SECRETARY OF THE DEPARTMENT
OF HOMELAND,
DEPARTMENT OF HOMELAND SECURITY,

                                                                     Respondent.


                      ________________________

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

                          (December 19, 2005)

Before CARNES, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:

       Chao Jin Chen petitions for review of the BIA’s orders denying his motions

to reconsider and to reopen the BIA’s denial of his applications for relief from

removal. Because Chen’s removal proceedings commenced after April 1, 1997,

this case is governed by the permanent provisions of the Immigration and

Nationality Act (“INA”), as amended by the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 (“IIRIRA”). Gonzalez-Oropeza v. U. S.

Att’y Gen., 321 F.3d 1331, 1332 (11th Cir. 2003). Although Chen filed separate

petitions, we now consolidate the petitions because they involve the same

underlying applications for relief from removal.

       I. Background

       On January 18, 2002, the Immigration and Naturalization Service (“INS”)1

issued Chen a Notice to Appear. The Notice to Appear charged that Chen, a

citizen and native of China, was present in the United States without being

admitted or paroled, and was removable under INA § 212(a)(6)(A)(i); 8 U.S.C.

§ 1182(a)(6)(A)(i).



       1
          On November 25, 2002, President Bush signed into law the Homeland Security Act of
2002 (“HSA”), Pub. L. No. 107–296, 116 Stat. 2125. The HSA created a new Department of
Homeland Security (“DHS”), abolished the INS, and transferred its functions to the new department.
Because this case commended while the INS was in existence, this memorandum refers to the INS
rather than the DHS.

                                                2
        Chen filed an application for relief from removal seeking asylum and

withholding of removal. According to Chen, he and his family had been

persecuted based on his parents’ religious practice of Falun Gong and Chen feared

arrest and torture should he return to China. In support of his claims, Chen

submitted information on Falun Gong followers and the State Department’s 2001

Report on China, which detailed treatment of Falun Gong practitioners and the

government’s imprisonment and torture of its followers.

        Following a hearing, the Immigration Judge (“IJ”) found Chen removable

and not entitled to relief under asylum, voluntary departure, withholding of

removal, or the Convention Against Torture.2 The IJ determined that, although

Chen’s family’s religious beliefs were illegal in China, there was no evidence of

past persecution or that he faced torture and arrest if returned. The IJ found Chen’s

testimony to lack credibility, and he questioned the veracity of the Chinese

documents Chen submitted in support of his claims. The IJ further found that

Chen was not a “refugee” for purposes of the asylum statutes, and that relief under

the Convention Against Torture was not warranted. The opinion issued March 27,

2003.




        2
            8 C.F.R. § 208.16(c).

                                          3
      Chen filed an appeal from the IJ’s decision, asserting that he was entitled to

asylum. On April 8, 2004, the BIA dismissed the appeal, concluding that Chen had

failed to meet his burden of showing past persecution, or that he likely would face

persecution and torture if returned to China. In August 2004, Chen moved the BIA

to reconsider its dismissal. The BIA denied the motion to reconsider as untimely.

      On December 3, 2004, Chen moved to reopen his appeal from the denial of

asylum relief. In support of his motion, he submitted materials to corroborate his

claim that he feared persecution if returned to China. The attachments included

undated articles advising of the Falun Gong philosophy and the treatment and

torture its followers received in China. Also attached was a copy of a New York

Times article dated September 23, 2004, explaining anti-China protests in New

York in connection with Falun Gong. Finally, Chen submitted the 2003 Report on

Human Rights from the State Department.

      The BIA denied the motion to reopen, finding it untimely. The BIA

indicated that the IJ’s decision dated April 8, 2004, was a final order, and,

therefore, the motion to reopen had to be filed within ninety days of that date. The

BIA further found that Chen had not submitted sufficient evidence of changed

conditions in China to justify an extension of that ninety-day period. Finally, the

BIA determined that the motion failed even if it was timely because the evidence



                                           4
submitted was not specific to Chen and did not materially enhance his claim. Chen

filed petitions for review of the BIA’s orders denying his motions for

reconsideration and to reopen his application.

       II. Review 3

       We review the BIA’s denials of a motion for reconsideration and a motion to

reopen for abuse of discretion. Abdi v. U.S. Att’y Gen., No. 04-16447, slip op. at

449 (11th Cir. Nov. 15, 2005); Dakane v. U.S. Att’y Gen., 399 F.3d 1269, 1272 n.2

(11th Cir. 2005); Assa’ad v. U.S. Att’y Gen., 332 F.3d 1321, 1341 (11th Cir.

2003), cert. denied, 125 S.Ct. 138 (2004). Motions to reconsider are disfavored in

removal proceedings. I.N.S. v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116

L.Ed.2d 823 (1992) (discussing motions to reopen and explaining that such

motions are disfavored because “as a general matter, every delay works to the

advantage of the deportable alien who wishes merely to remain in the United

States”).

               A. Motion for Reconsideration




       3
          In an order dated December 2, 2004, this court sua sponte dismissed Chen’s petition for
review of the BIA’s April 2004 order for lack of jurisdiction because the petition for review was
untimely as to that order. See also Dakane v. U.S. Att’y Gen., 399 F.3d 1269, 1272 n.3 (11th Cir.
2005). Thus, the only issues before us on appeal are the denial of the motions for reconsideration
and to reopen.

                                                5
      On appeal, Chen argues that the BIA abused its discretion because it did not

consider the complete record in concluding that he was not entitled to relief, but

based its decision solely on the fact that the motion was untimely. Although he

acknowledges that his motion was untimely and that motions to reconsider are

disfavored, he asserts that the BIA should have sua sponte considered his claims

because of the torture he faced if he was returned to China.

      Under 8 C.F.R. § 1003.2, a motion to reconsider a BIA decision must be

filed within thirty days of the decision, and must “state the reasons for the motion

by specifying the errors of fact or law in the prior Board decision . . . supported by

pertinent authority.” 8 C.F.R. § 1003.2(b)(1), (2). Additionally, “[t]he Board may

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

rendered a decision.” 8 C.F.R. § 1003.2(a). However, the BIA “has discretion to

deny a motion to reopen even if the party moving has made out a prima facie case

for relief.” 8 C.F.R. § 1003.2(a).

      Here, the BIA did not abuse its discretion by denying the motion for

reconsideration. Chen filed his motion to reconsider in August 2004, more than

thirty days after the BIA issued the order denying relief. “Statutes of limitations

are not simply technicalities. On the contrary, they have long been respected as

fundamental to a well-ordered judicial system.” Mejia Rodriguez v. Reno, 178



                                           6
F.3d 1139, 1145 (11th Cir. 1999) (citation omitted). As Chen admits that his

motion was untimely, the BIA did not abuse its discretion by denying the motion to

reconsider.

      Chen nevertheless contends that the BIA should have exercised its discretion

under § 1003.2(a) to reconsider his claims because his claims were meritorious.

Under the regulations, however, the BIA has broad discretion to reconsider claims

on its own motion and the BIA’s exercise of this discretion is not subject to judicial

review. See Anin v. Reno, 188 F.3d 1273, 1279 (11th Cir. 1999); see also 8 C.F.R.

§ 1003.2(a). As this court has noted, this discretion “is so wide that ‘even if the

party moving has made out a prima facie case for relief,’ the BIA can deny a

motion to reopen a deportation order.” Anin, 188 F.3d at 1279.

              B. Motion to Reopen

      Chen also argues that the BIA abused its discretion by denying the motion to

reopen because he submitted evidence that was material and unavailable earlier in

the proceedings, and that these changed circumstances warranted review. He also

suggests that the ninety-day period in which he could have filed the motion should

begin to run on the date the BIA issued its final order - i.e., the denial of the motion

for reconsideration - rather than the date of the IJ’s decision. He further contends




                                           7
that the BIA had the authority to reopen his case, and this court may review the

BIA’s sua sponte decision not to reopen if exceptional circumstances exist.

      The regulations provide that a motion to reopen “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). The motion must be filed within ninety days after the

date on which the final administrative decision was rendered in the proceeding

sought to be reopened. Id. § 1003.2(c)(2). This limitations period does not apply

if there are changed circumstances in the country to which the alien will be

deported if “such evidence is material and was not available and could not have

been discovered or presented at the previous hearing.” Id. § 1003.2(c)(3)(ii).

      As an initial matter, the IJ’s decision was the final order triggering the

limitations period once the BIA dismissed Chen’s appeal 8 C.F.R. § 1241.1(a).

Chen’s motion for reconsideration did not toll the limitations period or change the

date upon which there was a final order. Stone v. INS, 514 U.S. 386, 393-94, 115

S.Ct. 1537, 1543-46, 131 L.Ed.2d 465(1995). Therefore, Chen’s motion to reopen,

filed more than ninety days after the IJ’s decision, was untimely.

      Additionally, Chen has not shown exceptional circumstances based on

changed conditions that would warrant reopening. Notably, the IJ had the 2001



                                           8
State Department Report as evidence at the time it rendered its decision. Thus, the

2003 Report Chen submitted with his motion to reopen was not exactly new

evidence. Moreover, the report issued in February 2004, but Chen did not file his

motion until December of that year. Thus, the information was available before

the BIA affirmed the IJ’s decision and before Chen filed his motion for

reconsideration. Nevertheless, Chen did not raise the issue of changed

circumstances until his motion to reopen in December. Additionally, as Chen was

not a Falun Gong follower, the information was not specific to him. Accordingly,

Chen has not established changed circumstances that would excuse his untimely

motion to reopen.

      III. Conclusion

      Because this court should not address the BIA’s decision not to exercise its

discretionary authority, and the BIA did not abuse its discretion by denying Chen’s

untimely motions to reconsider or to reopen, we DENY the petitions for review.




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