IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 of China, was ordered removed in

absentia after failing to appear at a 2002 removal hearing. In 2007, Lin filed an

untimely motion to reopen based on purported new evidence that he would be

forcibly sterilized if he returned 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 Board of Immigration Appeals (BIA) dismissed Lin’s appeal. 

United States Court of Appeals

Fifth Circuit

F I L E D

March 21, 2013

Lyle W. Cayce

Clerk

* 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.

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No. 11-60675

In 2011, Lin filed a second motion to reopen, citing newly-available evidence that

enforcement of the one-child policy had recently increased in his home province. 

He contends the BIA abused its discretion by denying this second motion to

reopen. 

Motions to reopen are disfavored, and their denial is reviewed under a

“highly deferential abuse of 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 in the evidence, or

otherwise so irrational that it is arbitrary rather than the result of any

perceptible rational approach”. Zhao v. Gonzales, 404 F.3d 295, 304 (5th Cir.

2005) (internal quotation marks and citation omitted). Numerical and temporal

limitations on motions to reopen do not apply where a motion is based on

evidence of “changed country conditions arising in the country of nationality or

the country to which deportation 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 maintains his “individualized letters” from Chinese family-planning

authorities, internal State Department documents, Chinese documents

suggesting increased enforcement of the one-child policy through forced

sterilization, and the 2009 Annual Report 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 of the evidence was insufficient to show a change in country

circumstances or conditions. 

Lin has not shown the BIA abused its discretion in denying his motion to

reopen. The record demonstrates the BIA considered the evidence and Lin’s

contentions, and determined they did not establish changed country conditions

regarding the treatment of violators of the family planning law. Regardless of

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No. 11-60675

whether the BIA erred in determining the letters and other Chinese documents

were not authenticated, the BIA’s ruling that Lin failed to show a change in

country conditions was not “capricious, racially invidious, utterly without

foundation in the evidence, or 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. 

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