FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 MARCH 13, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-13944

Non-Argument Calendar

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Agency No. A97-133-028

SHAN DONG CHEN,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

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Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(March 13, 2009)

Before BIRCH, CARNES and ANDERSON, Circuit Judges.

PER CURIAM:

Shan Dong Chen, a native and citizen of China, petitions for review of the
Board of Immigration Appeals’ denial of his motion to reopen his removal

proceedings. The facts relating to Chen’s immigration proceedings are set forth in

Chen v. United States Att’y Gen., No. 07-11977 (11th Cir. Jan. 23, 2008). There

we held that the BIA had abused its discretion in denying Chen’s motion to reopen

based on newly submitted evidence of his wife’s forced sterilization in China,

because the BIA failed to make a finding as to whether such evidence was

previously unavailable and the record did not support the BIA’s conclusion that

Chen’s evidence was not material. On remand, the BIA again denied Chen’s

motion to reopen. It concluded that the evidence was previously available and

discoverable and that Chen was not eligible for asylum relief based solely upon his

wife’s forced sterilization.

Chen contends that the BIA erred in concluding that the evidence was

previously unavailable because he had no knowledge of, or documents pertaining

to, his wife’s forced sterilization until after his asylum hearing. He argues that he

provided evidence that his wife did not inform him of the forced sterilization until

after the asylum hearing and that the BIA unfairly denied him the opportunity to

present a claim based upon such evidence.

“We review the BIA’s denial of a motion to reopen for abuse of discretion.”

Montano Cisneros v. United States Att’y Gen., 514 F.3d 1224, 1226 (11th Cir.

2008). “Our review is limited to determining whether there has been an exercise of

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administrative discretion and whether the matter of exercise has been arbitrary or

capricious.” Abdi v. United States Att’y Gen., 430 F.3d 1148, 1149 (11th Cir.

2005) (quotations omitted).

A motion to reopen “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 C.F.R. § 1003.2(c)(1). “Motions to reopen are disfavored,

especially in a removal proceeding, where, as a general matter, every delay works

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

States.” Abdi, 430 F.3d at 1149 (citation and internal quotation marks omitted).

“A motion to reopen proceedings shall not be granted unless it appears to the [BIA]

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); see also Al Najjar v. Ashcroft, 257 F.3d 1262, 1302 (11th Cir.

2001) (recognizing that the BIA may deny a motion to reopen based on the alien’s

“failure to introduce evidence that was material and previously unavailable”).

Here the record supports the BIA’s determination that Chen’s evidence was

previously available and discoverable. Chen admits that his wife’s forced

sterilization occurred more than two months before his asylum hearing, but argues

that his wife did not tell him about the procedure until after his hearing. See contra

Verano-Velasco v. United States Att’y Gen., 456 F.3d 1372 (11th Cir. 2006)

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(noting that the alien’s petition to reopen was based on a family court order that

was issued after the alien’s asylum hearing). Relying on the Immigration Judge’s

adverse credibility determination, the BIA did not accept Chen’s explanation.

Although Chen argues that the adverse credibility determination was “groundless,”

we have already held that we lacked jurisdiction to review the IJ’s adverse

credibility determination because Chen failed to file a timely petition for review

from the BIA’s final order of removal. See Chen, No. 07-11977, slip op. at 5–6.

We therefore conclude that the BIA’s reliance on the IJ’s adverse credibility

finding was not an abuse of discretion. Because the BIA found that Chen’s

evidence was available and discoverable before his asylum hearing, it properly

denied his petition to reopen.

PETITION DENIED.

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