IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-60679

Summary Calendar

DE-MEI ZHANG, also known as De Mei Zhang,

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. A070 072 464

Before DENNIS, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM:*

De-Mei Zhang, a native and citizen of China, petitions this court for review

of an order of the Board of Immigration Appeals (BIA) denying his motion to

reopen his immigration proceeding. He argues that the BIA abused its

discretion when it ruled that he had not established changed country conditions

sufficient to warrant consideration of his untimely motion to reopen under

8 C.F.R. § 1003.2(c).

United States Court of Appeals

Fifth Circuit

F I L E D

July 26, 2012

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. 11-60679

A highly deferential abuse of discretion standard applies to review of the

BIA’s denial of a motion to reopen. Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir.

2005). “Such discretion is not to be disturbed so long as it is not capricious,

racially invidious, utterly without foundation in the evidence, or otherwise so

aberrational that it is arbitrary rather than the result of any perceptible rational

approach.” Manzano-Garcia v. Gonzales, 413 F.3d 462, 469 (5th Cir. 2005)

(internal quotation marks and citation omitted). 

Motions for reopening immigration proceedings are disfavored because,

generally, every delay enures to the advantage of the deportable alien. INS v.

Doherty, 502 U.S. 314, 323 (1992). Ordinarily, such motions “must be filed no

later than 90 days after the date on which the final administrative decision was

rendered in the proceeding sought to be reopened.” 8 C.F.R. § 1003.2(c)(2). 

However, the above time limitation does not apply to a motion to reopen

proceedings based on “changed circumstances arising in the country of

nationality or in the country to which deportation has been ordered, if such

evidence is material and was not available and could not have been discovered

or presented at the previous hearing.” § 1003.2(c)(3)(ii). 

Noting that he presented evidence that he is the father of two children, one

of which was born after he left China, Zhang asserts that he is now subject to

persecution in China because he is in violation of that country’s family planning

policy. Such a self-induced change in personal circumstances, however, is

distinguishable from changed country conditions, and provides no evidence of

changed conditions in China. See Huang v. Holder, 358 F. App’x. 587, 588 (5th

Cir. 2009). 

Zhang further contends that he presented documentary evidence

demonstrating the Chinese government’s enforcement of the family planning

policy and its crackdown on persons practicing the Christian faith. In

determining whether evidence accompanying a motion to reopen demonstrates

a material change in country conditions that would justify reopening, the BIA

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No. 11-60679

compares the “evidence of country conditions submitted with the motion to those

that existed at the time of the merits hearing below.” In re S–Y–G, 24 I. & N.

Dec. 247, 253 (BIA 2007). The evidence presented by Zhang focuses on China’s

recent practices with respect to persons who violate the family planning laws,

or who practice Christianity. Zhang has not pointed to evidence of record that

demonstrates a material change in country conditions since his merits hearing. 

He has therefore failed to show that the BIA abused its discretion in denying his

motion to reopen. See Zhao, 404 F.3d at 303. 

PETITION FOR REVIEW DENIED.

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