                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                      FILED
                      ________________________          U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                            September 11, 2008
                            No. 07-15781                     THOMAS K. KAHN
                        Non-Argument Calendar                    CLERK
                      ________________________

                          BIA No. A77-024-030

SHAO YU YUAN,


                                                                    Petitioner,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                  Respondent.


                      ________________________

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

                          (September 11, 2008)


Before BLACK, MARCUS and WILSON, Circuit Judges.

PER CURIAM:
      Shao Yu Yuan petitions us to review the Board of Immigration Appeals’

(BIA’s) decision denying her motion to reopen and affirming the Immigration

Judge’s (IJ’s) order of removal, denial of asylum, withholding of removal, and

relief pursuant to the Convention Against Torture (CAT) . She asserts the BIA

abused its discretion in denying her motion to reopen as she proffered sufficient

evidence of changed country conditions in China, specifically, more aggressive

enforcement in Fujian Province of China’s “one-child” policy. In particular, she

contends she has submitted similar evidence as that in Li v. U.S. Att’y Gen., 488

F.3d 1371 (11th Cir. 2007), which held the BIA abused its discretion in denying a

motion to reopen as the petitioner had established changed country conditions in

the form of more aggressive enforcement of China’s family planning law. In

addition, she contends she is permitted to file a successive asylum application

based on changed personal circumstances under 8 U.S.C. § 1158(a)(2)(D).

Further, she asserts she may file a motion to reopen at any time pursuant to 8

U.S.C. § 1229a(c)(7)(C)(ii), as she did not receive proper notice of her original

hearing. Finally, she contends even if her request for asylum is untimely she is still

entitled to a hearing on her claims of withholding of removal and CAT relief.

       “We review the BIA's denial of a motion to reopen for an abuse of

discretion.” Abdi v. U.S. Att’y Gen., 430 F.3d 1148, 1149 (11th Cir. 2005).

“[R]eview is limited to determining whether there has been an exercise of
                                          2
administrative discretion and whether the matter of exercise has been arbitrary or

capricious.” Id. (quotations omitted). A party may only file one motion to reopen

removal proceedings, and that motion “shall state the new facts that will be proven

at a hearing to be held if the motion is granted, and shall be supported by affidavits

or other evidentiary material.” 8 U.S.C. § 1229a(c)(7)(A), (B). A motion to

reopen must be filed no later than 90 days after the final administrative decision. 8

C.F.R. § 1003.2(c)(2). The 90-day time limit does not apply if the motion to

reopen is filed on the basis of changed circumstances in the country of the

movant's nationality. 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii).

To meet this exception, a movant must show material evidence that was not

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

Id. Moreover, 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).

       We have held that: “[a]t a minimum, there are at least three independent

grounds upon which [the BIA] may deny a motion to reopen: (1) failure to

establish a prima facie case; (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.”

Al Najjar v. Ashcroft, 257 F.3d 1262, 1302 (11th Cir. 2001). Forced abortions and

sterilizations are considered persecution, specifically:
                                             3
      A person who has been forced to abort a pregnancy or to undergo
      involuntary sterilization, or who has been persecuted for failure or
      refusal to undergo such a procedure or for other resistance to a
      coercive population control program, shall be deemed to have been
      persecuted on account of political opinion, and a person who has a
      well founded fear that he or she will be forced to undergo such a
      procedure or subject to persecution for such failure, refusal, or
      resistance shall be deemed to have a well founded fear of persecution
      on account of political opinion.

8 U.S.C. § 1101(a)(42)(B).

      We addressed a case with a similar factual background in Li, 488 F.3d 1371.

Li was a native of Lianjiang, Fujian Province, China, who came to the United

States without valid entry documents but was found to have a credible fear of

torture or persecution. Id. at 1372. Li missed her hearing date and was found

removable. Id. Li filed a motion to reopen in 2006 based on changed conditions,

offering evidence that officials in Fujian Province had intensified their persecution

of parents with two children. Id. at 1372-73. The evidence included Li’s affidavit

of secondhand accounts of forced sterilization and abortion, her mother’s affidavit,

the 2003, 2004, and 2005 Country Reports, 2002 congressional testimony from

John Aird–a specialist on China’s population policy, newspaper articles, a 2005

Consular Information Sheet, and evidence that she was the mother of children born

in the United States. Id. at 1373. We vacated the BIA’s denial of her motion to

reopen stating “[t]he issue before the Board was whether Li’s evidence was

material and previously unavailable evidence of changed conditions in China. Li’s
                                          4
evidence of a recent campaign of forced sterilization in her home village . . .

clearly satisfied the criteria for a motion to reopen her removal proceedings.” Id. at

1375 (citation omitted). We also rejected the BIA’s distinction between foreign-

born and Chinese-born children. Id. at 1376.

      While there are some minor differences between Yuan’s case and Li, the

underlying factual background and evidence cited are very similar. Yuan has

presented evidence of a recent campaign of forced sterilization in her home village

in China. Both Yuan and Li are from Lianjiang County, Fujian Province. Yuan,

like Li, provided an affidavit of secondhand accounts of forced sterilizations and

more aggressive enforcement of China’s family planning law during the same time

period. Yuan’s affidavit stated she has been told by her family that village cadres

had recently held a number of meetings to discuss China’s 2002 Family Planning

Law and the many pregnant women in her hometown were being taken away to

undergo abortions and forced sterilizations. She also gave examples of two women

who were recently forcibly sterilized after giving birth to a second child. The BIA

did not find Yuan’s testimony regarding more aggressive enforcement incredible,

and did not specifically address her affidavit. See Yang v. U.S. Att’y Gen., 418

F.3d 1198, 1201 (11th Cir. 2005). Contrary to the Government’s claim, Yuan also

cited the 2005 Country Report discussed in Li, which referenced a recently



                                           5
discovered program of forced sterilization of thousands of women in another

province.

       Yuan also proffered evidence that foreign-born children are treated the same

as those born in China, including the Consular Information Sheet similar to the one

cited in Li that states China considers the foreign born children of Chinese

nationals solely as Chinese citizens. She also provided evidence, in Aird’s

affidavit, of a 2003 official correspondence from Fujian provincial family planning

officials stating that Chinese nationals whose children were born abroad will be

subject to family planning enforcement upon return. The BIA did not address the

reference to this correspondence directly,1 which seems to contradict, along with

her affidavit, the BIA’s finding that “[Yuan] has not demonstrated that she will be

sterilized or otherwise subjected to coercive population control measures due to the

birth of her United States citizen children.”

       Most of the cases relied upon by the BIA are not persuasive because they

predate Li. In its opinion, the BIA rejected the documents cited by Yuan stating it

had addressed the same evidence in four previous BIA decisions in which it held

this evidence did not show a material change in conditions in China. However, a

review of the decisions cited indicates three of the four decisions were issued

       1
         In generally rejecting the evidence proffered by Yuan, the BIA cited a case which
found this document had a limited application. See In Re S-Y-G-, 24 I&N Dec. 247, 254-55 (BIA
2007).
                                              6
before Li where this Court found much of the evidence discussed to be material. In

addition, some of these decisions rely on documents not included in the record in

this case, including the 2006 and 2007 Country Reports.

      The Government’s attempt to distinguish Li is unpersuasive. The

Government asserts the present case can be distinguished from Li citing the lack of

firsthand testimony, that she did not submit the 2005 Country Report, that Yuan’s

statements at her original detention are similar those made in her motion to reopen,

and that there are indications in the evidence that China’s policy has not changed.

First, the Government is correct that Yuan did not submit any firsthand accounts as

evidence. However, Yuan describes information given to her by her family in her

own affidavit, and it appears the firsthand account submitted in Li was only one

piece of evidence considered by this Court and was not dispositive, in and of itself.

See Li, 488 F.3d at 1373. Second, while the 2005 Country Report is not included

in the record, Yuan does cite to relevant portions of the report in her brief to the

BIA on remand, which the Government did not challenge as inaccurate. Also,

Yuan’s original motion to reopen with the BIA predates the 2005 Report. Third,

Yuan testified in 2000 she was forced to get an abortion because she was

unmarried. In 2005, she stated officials had become more aggressive in forcing

sterilization of women who had given birth to more than one child. Contrary to the

Government’s argument, it does not necessarily follow that this testimony shows
                                           7
no change in enforcement, as Yuan’s testimony in 2000 related to forced abortions

for unmarried women, while her more recent statements address forced

sterilization of married women with more than one child. Finally, the Government

argues statements in Aird’s affidavit undermine the argument the policy has

changed as he stated “the basic policy has remained largely unchanged.” Reading

Aird’s testimony in context, he is referring to China’s one-child policy and is not

discussing the level of enforcement of that policy, the alleged changed conditions

in this case. In fact, in the preceding sentences, Aird indicated the enforcement of

China’s family planning program has changed over time stating “[a]t times high

pressure campaigns mounted to implement this program have backfired, evoking

such strong popular resentment that the authorities have had to ease the pressures

temporarily. But in each instance when the softer approach led to rising birth rates,

the pressure was resumed. Three cycles of relaxing and tightening have occurred

since the late 1970's.” Thus, the testimony cited by the Government arguably

supports the contention that enforcement of China’s family planning law can vary.

      Lastly, Yuan’s challenge to the distinction the BIA allegedly made between

foreign-born children and those born in China with regard to the enforcement of

family planning laws is unpersuasive. Unlike in Li, it does not appear the BIA

found Yuan would be treated differently because her children were born in the

United States, but instead found the birth of her children in the United States, in
                                           8
and of itself, did not constitute changed country conditions but changed personal

conditions. There does not appear to be any language in Li that would indicate the

BIA erred in making this distinction.

       While there are some minor differences between Yuan’s case and Li, the

underlying factual background and evidence cited are very similar. Thus, Yuan

has presented material information that was previously unavailable of changed

conditions in her home village regarding an increase in forced sterilization for

women with two children and a prima facie case that she would be eligible for

asylum or withholding of removal. As such, the BIA abused its discretion in

denying Yuan’s motion to reopen, especially considering the BIA never mentioned

Li, much less applied it, even though it was issued five months before the BIA’s

decision.

       We grant the petition and vacate the order denying Yuan’s motion to reopen

and remand to the BIA for further proceedings.2

       PETITION GRANTED. ORDER VACATED and REMANDED.




       2
         Because we have vacated the BIA’s denial of Yuan’s motion to reopen, we need not
address Yuan’s remaining arguments.
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