NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a0628n.06 No. 11-3221 UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T SU FANG L I

N, Petitioner,

v. ERI C H. HOL DER, J R., Attorney Gene ral, Respondent. ) ) ) ) ) ) ) ) ) ON PETI TI ON F OR REVI EW FROM A F I

NAL ORDER OF TH E BO ARD OF I MMI GRATI ON APPEAL S

Be fore : COL E and DO NAL D, Circuit J udg es; SARGUS, District J udg e. *

PER C URI AM. Su Fa

ng L in petitions for r eview of an orde r of the B oard of

I mmigration Appea ls (BIA) that de nied her motion to reopen her

remova l proce eding s. L in is a native a

nd citizen of China. Whi le in China, she was a resident of J unzhu Villag e in the Mawe i District of Fuzhou City in the Fujian Province. She lawfully enter ed the United States

on May 26, 2002, on a conditional basis as the spouse of a United States citizen. In 2005, L in a nd her husband divorce d, and the Depa rtment of Ho m el an d Security subsequently initiated remova l proce eding s ag ainst her. I n 2006, L in marrie d another United States citizen, with whom she had two children, bor

n in J anuar

y 2005 and Oc tober 2006, that a re U nited States citiz ens. I n November 2 0 0 7 , L in applied for asy lum, withholding of remova l, and relief under the Convention Ag ainst Torture (CAT), alleg ing that she would be perse cuted and tortured if remove d to China beca

use she violated its one-c hild policy

. The immigra tion judge (I J ) conclude d that L in’s asy lum a pplication was untimely

beca use she did not file it within one y ear of ente ring the United

The Honora

ble Edmund A. Sarg us, J r., United States District J udg e for the Southern District * of Ohio, sitting by

desig nation.No. 11-3221 - 2 - States or within a rea sonable time afte r th e birth of her second child. The I J denied L in’s applications for withholding of remova l and relief under the CAT, concluding that the evidenc e was insufficient to establish her elig ibilit y for relief

. On November 23, 2010, the BIA aff irmed the I J ’s decision. On Dec ember 27, 2010, L in filed a motion asking the BIA to rec onsider its prior decision and to reope n her remova l proce eding s. I n support of her reque st to reope n, she prese nted sever al piece s of new evidenc e, including: (1) a 2009 Family Planning Work Report from Ting jiang Town, which is i n t h e Mawe i District of Fuzhou City in Fujian Province; (2) a 2009 annual repor t by the Congr essional-Executive Commi ssion on China; and (3) a repor t from Dr. Flora Sapio, of the Centre of Advanced St udies on Contemporary China, that criticized the m ethodol og y and conclusions of the State Depa

rtment’s 2 0 0 7 re port conce rning asy lum claims and country conditions in China, which the BIA had relied on in denying relief

. The BIA denied L in’s reque st for rec onsideration as untimely

. I t denied her reque st to reope n her remova l proce eding s, concluding that the new evidenc e failed to de monstrate a rea sonable likelihood that she could establish elig ibilit y for withholding of

remova l or relief

under the CAT. On appea l, L in argues that the BIA err ed in denying her motion to reope n by failing to g ive meaning ful consideration to the new evidenc e and by concluding that the evidenc e was insufficient to establish her elig ibilit y for relief

. We revie w the BI

A’s denial of a motion to reope n for an abuse

o f discretion. Bi Feng Liu v. Holder , 560 F.3d 485, 489 (6th Cir. 2009). An abuse of dis cr et i o n

occur s wher e the BI

A denies a motion without a rational explanat i o n , i n ex p l icably depar ts from established policies, or rests its decision on an impermissible basis such as invidious discrimination aga i n s t a particula

r rac e or g roup. Id. at 490. A motion to reope n shall not be g rante d unless i t prese nts materia l evidenc e that could not have been discovere d previou s l y an d the evidenc e is sufficie nt to make a prim a fa cie showing of elig ibilit y for the relief being soug ht. Ilic-Lee v. Mukase y , 507 F.3d 1044, 1049-50 (6th Cir. 2007). The BIA’s fac tual deter minations are conclusive unless any rea sonable adjudicator would be compelled to conclude to the contra ry . Mezo v. Holder , 615 F.3d 616, 620 ( 6th Cir. 2010).No. 11-3221 - 3 - The BI A did not abuse its discretion in d eny ing L in’s motion to reope n. Despite L in’s argument to the contrary , the BI A di d not categ orica lly reje ct the evide nce she submitt ed with her motion to reope n. Rather, the BI A considere d the evidenc e and explained that it was insufficient to meet the leg al standard for reope ning L in’s remova l proce eding s. Fur ther, the BI

A’s conclusion to that eff ect wa s rea sonable. The 2009 work repor

t from Ting

jiang Town was insufficient to make a prima fac ie showing of elig ibilit y

for r elief, see Abdurak

hmanov v . Holder , 666 F.3d 978, 981 ( 6th Cir. 2012) , beca use t h e repor t dealt only with the family planning policy in Ting jiang Town. I t did not est ab l i s h t h e policy in L in’s municipal i t y of J unzhu Villag e or the applicable policy at the district, city , or provincial level. Additionally , the repor t did not discuss whet her or to what extent the family planning policy

applied to par ents of childre n who were born abroa d and brought into C hina. See Fang Huang v. Mukase

y , 523 F.3d 640, 652-53 (6th Cir. 2008). The 2009 Congr essional-Executive Commi ssion repor

t did not establish L in’s prima fac ie elig ibilit y for relief beca use it failed to addre ss wh et h er individuals in her circ umstances would be subjected to forc ed sterilization or otherwise perse cuted. L ikewise, while Dr. Sapio’s repor t was critica l of the 2007 State Depa rtment repor

t

conce rning country conditions in China, it failed to set forth evidenc e demonstrating that individuals in L in’s circ umstances had been perse cuted in China or that there was a rea sonable likelihood that L in would be subjecte d to persec ution. Acc ording ly , we de ny

L in’s petition for re view.