### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 11-60675 Summary Calendar

CHUNGUANG LIN, also known as Chun Guang Lin,
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. A078 315 117

Before BARKSDALE, CLEMENT, and GRAVES, Circuit Judges. PER CURIAM: * Chunguang Lin, a native and citizen o f C h i n a , was ordered removed in absentia after failing t o appear at a 2002 removal hearing. In 2007, Lin filed an
u n timely m otion to r eopen based on p urported new evidence that he w ould b e forcibly sterilized if he r eturned to China: since his 2002 removal order, he had married and fathered two children, who were born in the United States, in violation of China’s one-child policy. An immigration judge denied the motion; and, in 2008, the Boar d o f Immigration Appeals (BIA) dismissed Lin’s appeal. U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D March 21, 2013 Ly l e W . Cayce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 11-60675 Document: 00512182576 Page: 1 Date Filed: 03/21/2013No. 11-60675

In 2011, Lin filed a second motion to reopen, citing newly-available evidence that enforcement o f the one-child policy had recently increased in his home province. He contends the BIA abused its discretion b y d enying this second mot i o n t o reopen. Motions to reopen are disfavored, and their d e n i a l is reviewed under a “highly deferential abu s e o f discretion standard”. Lara v. Trominski , 216 F.3d 487, 496 (5th Cir. 2000). The BIA’s ruling will stand “so long as it is not capricious, racially invidious, utterly without foundation i n the evidence, or otherwise so irrational that it is arbitrary rather than the result of any perceptible rationa l a pproach”. Zhao v. Gonzales, 4 04 F.3d 295, 304 (5th Cir. 2005) (internal quotation marks a nd citation omitted). Numerical and temporal limitations on motions to reopen do not apply where a m o t i o n i s based on evidence of “changed country conditions arising in the country o f nationality or the c ountry to which d eportation has been ordered, if such evidence is material and was not available and would not have been discovered or presented at the previous proceeding”. 8 U.S.C. § 1229a(c)(7)(C)(ii); see 8 C.F.R. § 1003.2(c)(3)(ii). Lin m aintains his “individualized letters” f rom Chinese family-planning authorities, i nternal State Department documents, Chinese documents suggesting increased enforcement o f the one-child policy through forced sterilization, a nd the 2009 Annu a l R eport from the Congressional-Executive Commission on China show changed country conditions. The BIA determined the letters and Chinese documents were, inter alia , not authenticated, and the remainder o f the evidence was insu f f i c i e n t to s how a change in country circumstances or conditions. Lin has not s hown the BIA abused its discretion in denying his motion to reopen. T he r ecord demonstrates the BIA considered the evidence and Lin’s contentions, and determined they did not establish changed country conditions

r e g arding the treatment of violators of the family planning law. Regardle s s o f

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whether the BIA erred in d etermining the l etters and other Chinese documents

were not authenticated, the BIA’s ruling that Lin failed to s h ow a change in country conditions was not “capricious, racially invidious, utterly without foundation in the evidenc e , o r otherwise so irrational that it [was] arbitrary rather than the result of any perceptible rational approach”. Zhao, 404 F.3d at 304 (internal quotation marks and citation omitted). DENIED.

3 Case: 11-60675 Document: 00512182576 Page: 3 Date Filed: 03/21/2013