NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-3369

___________

LING LI,

Petitioner

v.

ATTORNEY GENERAL OF THE 

UNITED STATES OF AMERICA,

Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A095-844-000)

Immigration Judge: Honorable Charles M. Honeyman

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Submitted Pursuant to Third Circuit LAR 34.1(a)

February 20, 2013

Before: SMITH, HARDIMAN, and GREENAWAY, JR., Circuit Judges

(Opinion filed: February 22, 2013)

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OPINION

___________

PER CURIAM

 



Judge Hardiman has been substituted for Judge Weis.
2

Ling Li, a native and citizen of the People‟s Republic of China, petitions for review of 

the Board of Immigration Appeals‟ (“BIA”) decision denying her motion to reopen her 

removal proceedings. For the reasons that follow, we will deny the petition.

I.

In 2001, Li entered the United States without being admitted or paroled. Thereafter, she 

was placed in removal proceedings and applied for asylum, withholding of removal, and relief 

under the Convention Against Torture (“CAT”). In support of her application, Li claimed that 

family planning officials in China forced her to have an IUD inserted after the birth of her first 

child, and that her husband was forcibly sterilized after the birth of the couple‟s second child. 

Li also alleged that, shortly before she left China, she began hearing rumors that the Chinese 

government would sterilize women whose husbands had already been sterilized. 

In 2004, an immigration judge (“IJ”) denied Li‟s application and ordered her removal to 

China. In doing so, the IJ explained that “most of Li‟s case depended on the forcible 

sterilization of her husband, and that the evidence presented by Li „previously was insufficient 

to justify a grant of asylum for the husband,‟ on account of an adverse credibility determination 

made in the husband‟s case.”1 Li v. Att‟y Gen. of the U.S., 229 F. App‟x 126, 129 (3d Cir. 

2007) (summarizing and quoting the IJ‟s decision). The IJ also concluded that the forcible 

insertion of an IUD was, standing alone, insufficient to establish past persecution, and that Li‟s 

“mere statement that she heard [about the possible sterilization of women] . . . [was] 

inadequate for her to meet her burden of proof.” (J.A. at 47.) The BIA adopted and affirmed 

 

1 An IJ in New York denied Li‟s husband‟s asylum application in 1999. The BIA upheld that 

decision on appeal, and it appears that Li‟s husband did not petition the United States Court of 

Appeals for the Second Circuit to review the agency‟s decision.
3

the IJ‟s decision on appeal, and we subsequently denied Li‟s petition for review. See Li, 229 

F. App‟x at 130.

In November 2011, more than six years after her final order of removal was issued, Li 

moved the BIA to reopen her removal proceedings. She alleged that conditions in China had 

changed, thereby “making it more dangerous for her to return to China in light of her violation 

of China‟s Birth Control Policy and her [recent] conversion to Christianity.” (J.A. at 93.) In 

August 2012, the BIA denied the motion, concluding that Li had failed to show a material 

change in conditions in China.2 Li now petitions for review of that decision.

II.

We have jurisdiction over Li‟s petition pursuant to 8 U.S.C. § 1252(a)(1). We review 

the BIA‟s denial of a motion to reopen for abuse of discretion, Borges v. Gonzales, 402 F.3d 

398, 404 (3d Cir. 2005), and must uphold that decision unless it is “arbitrary, irrational, or 

contrary to law,” Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004) (quotation marks and 

citation omitted).

An alien generally must file a motion to reopen within ninety days of the entry of the 

final order of removal. See 8 U.S.C. § 1229a(c)(7)(C)(i). There is no such time limit, 

however, if the alien‟s motion “is based on changed country conditions arising in the country 

of nationality or the country to which removal has been ordered, if such evidence is material 

and was not available and would not have been discovered or presented at the previous 

 

2

The BIA also concluded that Li had not established that she was entitled to sua sponte 

reopening. “[W]e generally lack jurisdiction to review the BIA‟s decision not to reopen 

removal proceedings sua sponte,” Pllumi v. Att‟y Gen. of the U.S., 642 F.3d 155, 159 n.6 (3d 

Cir. 2011), and, in any event, Li does not challenge that aspect of the BIA‟s decision. 
4

proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii). “To meet the materiality requirement, [an alien] 

must allege facts that would be sufficient, if proved, to change the result of [her] application 

[for relief].” Khan v. Att‟y Gen. of the U.S., 691 F.3d 488, 496 (3d Cir. 2012).

Having considered the parties‟ arguments, and for the reasons provided by the BIA in 

its August 2012 decision, we hold that the BIA did not abuse its discretion when it concluded 

that Li‟s motion to reopen failed to establish materially changed conditions in China. Because 

the BIA was permitted to deny reopening on that basis alone, see INS v. Abudu, 485 U.S. 94, 

104-05 (1988), there is no merit to Li‟s argument that the BIA erred by failing to consider 

whether her evidence in support of reopening established a prima facie case for asylum, 

withholding of removal, and/or CAT relief.

In light of the above, we will deny the petition for review. Li‟s request for oral 

argument is denied.