          United States Court of Appeals
                       For the First Circuit

No. 12-2055

                             MING CHEN,

                            Petitioner,

                                 v.

              ERIC H. HOLDER., JR., Attorney General,

                            Respondent.


              PETITION FOR REVIEW FROM AN ORDER OF THE
                    BOARD OF IMMIGRATION APPEALS


                               Before

                         Lynch, Chief Judge,
                Howard and Thompson, Circuit Judges.


     Zhong Yue Zhang, a/k/a John Z. Zhang, on brief for petitioner.
     Lori B. Warlick, Trial Attorney, Office of Immigration
Litigation, Stuart F. Delery, Principal Deputy Assistant Attorney
General, and Melissa Neiman-Kelting, Senior Litigation Counsel,
Office of Immigration Litigation, on brief for respondent.



                            July 9, 2013
              HOWARD, Circuit Judge.               Ming Chen, a native and citizen

of the People's Republic of China, petitions this court for review

of the Board of Immigration Appeal's ("BIA") order denying his

motion to reopen removal proceedings as untimely.                      Because Chen

failed to satisfy any of the exceptions to the time limit for a

motion to reopen, we deny his petition.

                                              I.

              Chen entered the United States with a fraudulent passport

in    June   1997.        In   January    1998,      the   legacy   Immigration   and

Naturalization Service served him with a Notice to Appear ("NTA").

The NTA alleged that Chen had entered the United States through

fraud or willful misrepresentation, and did not otherwise have a

valid immigration entry document, rendering him removable under 8

U.S.C. § 1227(a)(1)(A).           Chen submitted an application for asylum

and withholding of removal. He claimed that he had been persecuted

by the Chinese authorities as the second of three children born to

his    parents,      in   violation      of    China's     one-child   policy.     An

immigration judge denied this relief in September 1998.                     The BIA

affirmed this decision in August 2002, and Chen did not seek

further review.

              Although the next step should have been Chen's removal

from the United States, he remained in the country for another nine

years.       He resurfaced in 2011 to file a motion to reopen his

removal proceedings.            Attached to this motion to reopen was a


                                          -2-
successive application for asylum and withholding of removal based

on   Chen's    membership    in   the    China   Democracy   Party   ("CDP").

According to the materials submitted in support of the application,

Chen had joined the CDP in 2010 and Chinese government officials

had become aware of his political activity in early 2011, exposing

him to the risk of persecution if he returned to China.                    He

submitted a letter, purportedly written by his mother, describing

how two government officials had visited her home in China to ask

questions about Chen's political advocacy.                According to her

account, they told her that Chen would face imprisonment if he

returned to China.

              Though Chen's motion to reopen fell well outside the

ninety-day deadline set forth in the regulations, see 8 C.F.R.

§ 1003.2(c)(2), Chen argued that his motion was based on changed

country   conditions    in   China      and   therefore   the   deadline   was

inapplicable, id. § 1003.2(c)(3)(ii). In particular, he noted that

the Chinese government had not initiated crackdowns against the CDP

until November 1998 -- after his last hearing in September 1998 --

and consequently the persecution of CDP members was by definition

a changed country condition.            Additionally, he claimed that the

Chinese government had moved to suppress pro-democracy groups

beginning in 1998 and continuing to the present.                Those against

whom these actions allegedly have been taken include members of

groups operating in the United States who later returned to China.


                                        -3-
            In March 2012, the BIA denied Chen's motion to reopen as

untimely, concluding that he had not demonstrated changed country

conditions that would exempt his motion from the deadline imposed

in the regulations.     It first determined that the letter from

Chen's mother lacked indicia of reliability to prove changed

country conditions, since the letter was not notarized and, even if

it was authentic, it came from "an interested party not subject to

examination."1   The BIA further held that Chen's involvement in the

CDP only constituted a change in his personal circumstances, and

not a change in country conditions.

            The BIA next looked to the broader claim that conditions

had worsened for the CDP and democracy activists since 1998. Since

the CDP had only recently come into existence at the time of Chen's

last immigration hearing, the BIA looked at the conditions for

democracy activists in general and found that "the treatment of

pro-democracy activists at the time of the respondent's last

hearing was similar to that described in [the latest country

report]."   It concluded that, "to the extent that the respondent's

motion is not based on a change in his personal circumstances, we

nonetheless do not find the respondent has met his burden of




     1
       The BIA incorrectly referred to Chen's father as the author
of this letter. Chen has not raised any issue relating to this
mistake. In fact, his brief also mistakenly identifies his father
as the author of the letter. This error is not relevant to our
decision.

                                 -4-
showing material, changed conditions in China." The BIA denied his

motion to reopen, and he petitioned us to review this decision.

                                         II.

              The BIA has "broad discretion, conferred by the Attorney

General, to 'grant or deny a motion to reopen.'" Kucana v. Holder,

558    U.S.   233,   250     (2010)    (quoting   8    C.F.R.   §   1003.2(a)).

Accordingly, we review the BIA's denial of Chen's motion to reopen

for abuse of discretion.         Smith v. Holder, 627 F.3d 427, 433 (1st

Cir.    2010).       Under    this    standard,   "we    uphold     the   agency's

subsidiary findings of fact as long as they are supported by

substantial evidence, we review embedded legal conclusions de novo,

and we review judgment calls for abuse of discretion."                        Id.

(quoting Vaz Dos Reis v. Holder, 606 F.3d 1, 3 (1st Cir. 2010))

(internal quotation marks omitted).                   Chen's motion to reopen

indisputably fell outside of the time limits prescribed in 8 C.F.R.

§ 1003.2(c)(2).        The question is whether Chen qualifies for an

exception to the time limit because his motion is "based on changed

circumstances arising in the country of nationality . . . [that

are] material and . . . could not have been discovered or presented

at the previous hearing."            8 C.F.R. § 1003.2(c)(3)(ii).

              Chen's evidence of changed country conditions falls into

two categories:       1) evidence that he has become a target of the

government since he joined the CDP; and 2) evidence that since 1998

the Chinese government has cracked down on the CDP and pro-


                                         -5-
democracy groups more generally.         The first category of evidence

cannot sustain a showing of changed country conditions; it only

indicates a change in Chen's personal circumstances.           "Under the

case law, a change typically will be categorized as a change in

personal   circumstances,    as   opposed    to   a   change   in   country

circumstances, if the change is self-induced."         Larngar v. Holder,

562 F.3d 71, 76 (1st Cir. 2009).            This prevents aliens from

repeatedly reopening their removal proceedings based on changes

that are within their control.     See Wang v. B.I.A., 437 F.3d 270,

274 (2d Cir. 2006) ("[I]t would be ironic, indeed, if petitioners

like Wang, who have remained in the United States illegally

following an order of deportation, were permitted to have a second

and third bite at the apple simply because they managed to marry

and have children while evading authorities.").         This rule applies

even if the change in personal circumstances will expose the alien

to persecution in his home country.        See Khan v. Attorney Gen. of

U.S., 691 F.3d 488, 497 (3d Cir. 2012) (holding that a petitioner's

decision to join the Awami National Party was a change in personal

circumstances, despite evidence that ANP members are targeted in

Pakistan).

             The evidence shows that any risk that Chen faces in China

is not because of changes within that country, but due to his

personal decision to engage in political activism.             Chen began

advocating for democratic reform in 2010.              In 2011, Chinese


                                   -6-
government     officials   allegedly     visited     his    parents'    home    and

threatened to arrest Chen because "he joined the reactionary

organization -- China Democracy Party in the United States."                   This

account, coupled with the lack of any threats prior to 2010,

supports only the conclusion that the government was responding to

Chen's nascent political activity.                 We need not question the

sincerity of Chen's civil disobedience; even assuming that Chen

joined   the   CDP   out   of   a   desire    to   change   China's     political

institutions, he did so long after the United States had ordered

him removed.      He knew, or should have known, that he could not

legally remain in this country, and that he would be returned to

China.     His decision to join the CDP was made in light of that

probability. That decision, therefore, cannot, by itself, form the

basis of a motion to reopen his removal proceedings after the

deadline has passed.2

            Rather than address this defective proof of changed

conditions, Chen focuses his argument on the second category of

evidence that he presented to the BIA -- evidence that the Chinese

government has cracked down on democracy activists since 1998. The

articles    and   documents     that   Chen    submitted     do   not    paint    a

flattering picture of the Chinese government's treatment of pro-

democracy groups.     Taken at face value, they show that the Chinese


     2
       Because we reach this conclusion assuming the truthfulness
of Chen's evidence, we need not address the BIA's finding that the
letter from Chen's mother lacked reliability.

                                       -7-
government has consistently targeted and suppressed pro-democracy

activists since well before 1998. According to Chen's submissions,

Chinese citizens who openly criticize their government regularly

face harassment, detention, and "re-education," and the submissions

indicate that little has changed to this day.        At the very least,

the documents Chen provided do not "point[] unerringly" to a

finding that Chinese policy materially changed since before Chen's

application was adjudicated.       Gilca v. Holder, 680 F.3d 109, 114

(1st Cir. 2012) (quoting Nikijuluw v. Gonzales, 427 F.3d 115, 120

(1st Cir. 2005)) (internal quotation marks omitted).               Thus, the

BIA's factual finding as to conditions in China is backed by

substantial evidence.

          This is true even considering the Chinese government's

alleged treatment of the CDP in particular. According to Chen, the

relevant change in country conditions is a "crackdown" that the

Chinese government initiated against the CDP in November 1998.

Chen's argument glosses over a salient point:            the CDP    was, at

that time, only a fledgling pro-democracy group.         The record shows

that the CDP first applied for registration with the Chinese

government in June 1998.     The government promptly rejected that

application and began arresting CDP leaders only months later.

Accordingly,   the   "crackdown"   against   the   CDP    would    not   have

constituted a material change in country conditions; at most it




                                   -8-
would be an example of the Chinese government swiftly suppressing

a newly organized group.

             To the extent that Chen suggests that the founding of the

CDP, by itself, constitutes a changed material condition within

China, we reject that argument. The treatment of particular groups

is certainly relevant to assessing country conditions.                But when,

as here, a new political group advances a cause that other groups

have already advanced and receives the same harsh treatment as the

prior     advocacy   groups,   the   group's   formation      alone    does   not

constitute a changed country condition.

             Similarly, Chen's allusion to the Chinese government's

alleged    recent    efforts   to    silence   Internet   dissent      does   not

demonstrate changed country conditions.           The Internet has emerged

as   an    effective    tool   for   dispersing   ideas    in    authoritarian

societies, and the Chinese government's purported desire to control

that medium is entirely consistent with its general approach toward

pro-democracy activism.        See Qing Chen v. Attorney Gen. of U.S.,

428 F. App'x. 212, 215 (3d. Cir. 2011) (per curiam) ("[T]he Chinese

Government's efforts to control activism via the internet [are]

merely part of its ongoing history of suppressing dissent and

controlling    the     dissemination    of   barred   ideas     and   material."

Indeed, Chen submitted a 1997 State Department report that noted an

existing law prohibiting Internet activities that incite "division

of the country." U.S. Department of State, China Country Report on


                                       -9-
Human Rights Practices for 1997 8 (1998).   In sum, we uphold the

BIA's finding that country conditions have not materially changed

within China.

                               III.

          The BIA's refusal to reopen was not an abuse of its

discretion.   Accordingly, Chen's petition for review is denied.




                               -10-
