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

                                                                            FILED
                                                                           June 10, 2008
                                     No. 07-60615
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

WEI SHENG LOU, also known as Weishao Luo

                                                  Petitioner

v.

MICHAEL B MUKASEY, U S ATTORNEY GENERAL

                                                  Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A70 442 840


Before STEWART, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Wei Sheng Lou has petitioned for review of an order of the Board of
Immigration Appeals (BIA) denying his motion to reopen as numerically barred
and untimely. This court has jurisdiction to review Lou’s petition as it seeks
relief based on allegedly changed circumstances in Lou’s home country of China.
See Panjwani v. Gonzales, 401 F.3d 626, 632 (5th Cir. 2005). We review the
BIA’s denial of a motion to reopen for abuse of discretion. Ogbemudia v. INS,
988 F.2d 595, 600 (5th Cir. 1993). That discretion will not be disturbed unless

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                  No. 07-60615

it is arbitrary, capricious, racially invidious, or utterly without evidentiary
foundation. Pritchett v. INS, 993 F.2d 80, 83 (5th Cir. 1993).
      Approximately seven years after he was ordered excluded, and over five
years after abandoning his first motion to reopen his deportation proceedings,
Lou filed a second motion seeking to reopen his deportation proceedings on the
basis that he is likely to be forcibly sterilized if he is removed to China because
he has married and, in violation of China’s family planning laws, has fathered
four children during the pendency of his exclusion proceedings. He argued that
these circumstances constitute a material change in circumstances warranting
the reopening of his deportation proceedings pursuant to 8 C.F.R.
§ 1003.2(c)(3)(ii).
      The BIA held that the motion to reopen was both numerically barred and
untimely and that Lou did not qualify for an exception to the numerical and time
restrictions for filing motions to reopen. The BIA held that the birth of Lou’s
children overseas did not entitle Lou to relief because it was a change in his
personal circumstances rather than a change of conditions in China. The BIA
further found that Lou had offered no persuasive evidence that forcible
sterilizations have occurred in his home province of Guangdong. The BIA
rejected Lou’s argument that a successive asylum application is not subject to
the timeliness and numerical limitations that govern motions to reopen and it
found that Lou had not demonstrated exceptional circumstances warranting the
exercise of its discretionary authority to reopen the proceedings. Lou filed a
timely petition for review.
      Lou has not shown that the BIA’s determination that his claim was based
on a change in his personal circumstances rather than changed circumstances
in China lacks an evidentiary foundation. Pritchett, 993 F.2d at 83. The BIA’s
determination that 8 U.S.C. § 1158(a)(2)(D) does not authorize Lou to file a
successive asylum application based on changes in his personal circumstances
is not arbitrary, capricious, or manifestly contrary to the applicable statutes.

                                        2
                                 No. 07-60615

See Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 844
(1984). As Lou has not attempted to controvert the BIA’s determination that
there is no persuasive evidence that forced sterilizations have occurred in Lou’s
home province of Guangdong, he has not established that he is entitled to relief
under the Convention Against Torture. Accordingly, the petition for review is
DENIED.




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