          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                FILED
                                                                 June 29, 2009
                               No. 08-60580
                             Summary Calendar                Charles R. Fulbruge III
                                                                     Clerk

YANG XIN CHUN, also known as Chun Yan Xin, also known as Xing Chun
Yang,

                                           Petitioner

v.

ERIC H HOLDER, JR, U S ATTORNEY GENERAL

                                           Respondent


                    Petition for Review of an Order of the
                       Board of Immigration Appeals
                             BIA No. A70 852 201


Before DAVIS, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
      Yang Xin Chun (“Yang”), a native and citizen of the People’s Republic of
China, petitions this court to review the denial by the Board of Immigration
Appeals (BIA) of his motion to reopen asylum and withholding of removal
proceedings. This court has jurisdiction to review Yang’s petition because it
seeks relief based on alleged changed circumstances in China. See Panjwani v.
Gonzales, 401 F.3d 626, 632 (5th Cir. 2005). “The BIA’s denial of a motion to


      *
      Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5 TH C IR. R. 47.5.4.
                                  No. 08-60580

reopen is reviewed for abuse of discretion and its factual findings are reviewed
for substantial evidence.” Id. That discretion will not be disturbed unless the
decision is “capricious, racially invidious, utterly without foundation in the
evidence, or otherwise so aberrational that it is arbitrary rather than the result
of any perceptible rational approach.” Pritchett v. INS, 993 F.2d 80, 83 (5th Cir.
1993) (internal quotation marks and citation omitted).
      Whether Yang made a prima facie case for the relief he seeks is not
relevant to whether the BIA abused its discretion when it denied his motion. See
8 C.F.R. § 1003.2(a). Yang was required to show changed country conditions in
China to overcome the 90-day time limit on his motion to reopen.              See
§ 1003.2(c)(2)–(3)(ii).   Yang did not show that his fear of persecution for
practicing Falun Gong and fathering two children in this country was based on
changed conditions in China, as opposed to self-induced changes in his personal
circumstances.    He has not shown that the BIA’s determination lacked an
evidentiary foundation. See Pritchett, 993 F.2d at 83. Therefore, the BIA’s
denial of Yang’s motion to reopen based on the motion’s untimeliness was not an
abuse of discretion. Accordingly, the petition for review is DENIED.




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