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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-60117

Summary Calendar

QI HUA LI, also known as Qi Hua Fi,

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. A097-903-403

Before GARZA, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM:*

Qi Hua Li petitions this court to review the denial by the Board of

Immigration Appeals (BIA) of his motion to reopen based on changed country

conditions. We deny the petition for review.

I

Li, a native and citizen of the People’s Republic of China, arrived in the

United States from China without possessing any valid entry documents.

United States Court of Appeals

Fifth Circuit

F I L E D

November 12, 2009

Charles R. Fulbruge III

Clerk
No. 09-60117

Singh v. Gonzales, 436 F.3d 484, 487 (5th Cir. 2006). 1

Id. (internal quotation marks omitted). 2

Zhu v. Gonzales, 493 F.3d 588, 594 (5th Cir. 2007). 3

Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997). 4

2

Immigration authorities first encountered Li in Albuquerque, New Mexico, as

a passenger on a Greyhound bus en route to New York. In November 2004, the

Department of Homeland Security commenced removal proceedings against Li,

charging him as removable under 8 U.S.C. § 1182(a)(6)(A)(i) as an alien present

in the United States without being admitted or paroled. After a trial, the

Immigration Judge (IJ) found Li removable as charged. The IJ denied Li’s

applications for asylum, withholding of removal, and relief under the Convention

Against Torture. Li appealed the IJ’s decision to the BIA. The BIA dismissed

Li’s appeal.

Later, Li married and had two children. After the birth of his children, Li

filed a motion to reopen with the BIA. Li claimed that the birth of his two

children, along with changed country conditions in China regarding its familyplanning policy, entitled him to new proceedings. The BIA denied the motion to

reopen, finding that the motion was untimely and did not qualify for any of the

exceptions to the time bar. Li then filed this appeal.

II

We review the BIA’s denial of a motion to reopen under a highly

deferential abuse-of-discretion standard. “So long as the Board’s decision is not 1

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, we must affirm the Board’s decision.” We review 2

the BIA’s legal conclusions de novo. We review the BIA’s factual findings to 3

determine if they are supported by substantial evidence.4
No. 09-60117

 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). 5

 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii). 6

 8 C.F.R. § 1003.2(c)(1). 7

INS v. Doherty, 502 U.S. 314, 323 (1992). 8

INS v. Abudu, 485 U.S. 94, 108 (1988) (internal quotation marks omitted). 9

3

III

An alien must file a motion to reopen within ninety days of the date on

which the final administrative decision was rendered. An alien is not bound by 5

this timing requirement, however, if his request for relief “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 proceeding.” The 6

alien bears the burden of proving that country conditions have changed.7

Motions to reopen immigration proceedings, and particularly deportation

proceedings, are disfavored because “every delay works to the advantage of the

deportable alien who wishes merely to remain in the United States.” As the 8

Supreme Court has stated, the granting of such motions “too freely will permit

endless delay of deportation by aliens creative and fertile enough to continuously

produce new and material facts sufficient to establish a prima facie case.”9

Li filed his motion to reopen 175 days after the BIA’s final decision, beyond

the ninety-day limit for such motions. Therefore, the motion is time barred

unless Li qualifies for an exception to the statutory timing requirement. Here,

Li has failed to establish that changed country circumstances in China entitle

him to an exception to the normal filing period.

In support of his contention that he established changed country

conditions, Li points to a number of documents that, he argues, show that

family-planning officials in China would force him to undergo a sterilization
No. 09-60117

4

operation pursuant to the country’s one-child policy. The BIA correctly found

that the foreign documents were not properly authenticated under 8 C.F.R.

§ 287.6(b). Those documents that were admissible do not provide evidence that

country circumstances regarding family-planning policies have changed.

Finally, Li did not show that his fear of persecution for fathering two children

in this country was based on changed conditions in China, as opposed to selfinduced changes in his personal circumstances. Therefore, the BIA did not

abuse its discretion when it denied Li’s motion to reopen.

* * *

For the foregoing reasons, we DENY Li’s petition. Li’s motion for stay

of removal is DENIED.