FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JULY 20, 2010

JOHN LEY

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 09-16078

Non-Argument Calendar

________________________

Agency No. A095-455-458

XIU YUN WANG, 

a.k.a. Xiu Yun Huang, 

Petitioner, 

versus

U.S. ATTORNEY GENERAL,

Respondent. 

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(July 20, 2010)

Before TJOFLAT, EDMONDSON and BIRCH, Circuit Judges.

PER CURIAM:

Petitioner Xiu Yun Wang, a native and citizen of China, petitions this court
to review the order of the Board of Immigration Appeals’ (“BIA”) denying her

untimely motion to reopen her removal proceedings, 8 C.F.R. § 1003.2(a). Wang

argues that (1) this court should look to the 1951 Geneva Refugee Convention

(“Refugee Convention”) and the 1967 Protocol Relating to the Status of Refugees

(“1967 Protocol”) when interpreting and applying the procedural limitations of the

Immigration and Nationality Act of 1952 (“INA”); (2) the BIA erred in declining

to exercise its discretion to sua sponte reopen her case; (3) several provisions of

the INA violate the Due Process Clause, and its equal protection component, of

the U.S. Constitution; and (4) the BIA abused its discretion in denying her motion

to reopen based on China’s changed country conditions. For the reasons set forth

below, we deny the petition for review.

I.

Wang first cites to the non-refoulement provision, 8 U.S.C. 1

 “Refoulement” is a French term for the expulsion or return of a refugee from one state 1

to another. Black’s Law Dictionary (8th ed. 2004). Relatedly, “nonrefoulement” is defined as a

refugee’s right not to be expelled from one state to another, especially to one where his or her life

or liberty would be threatened. Id.

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§ 1231(b)(3)(A), and references, inter alia, the Refugee Convention, Article 33

2 3

of the 1967 Protocol, in support of her claim that courts must look to Article 33 of 4

the Refugee Convention when interpreting and applying § 1231(b)(3)(A). 

In deciding whether to uphold the BIA’s decision, we are limited to the

grounds on which the decision was relied. See NLRB v. U.S. Postal Serv., 526

F.3d 729, 732 n.2 (11th Cir. 2008); Kwon v. INS, 646 F.2d 909, 916 (5th Cir. May

4, 1981) (en banc). We ordinarily will not reach a question that the BIA declined

to address. See Gonzales v. Thomas, 547 U.S. 183, 186-87, 126 S.Ct. 1613, 1615,

164 L.Ed.2d 358 (2006); INS v. Ventura, 537 U.S. 12, 16, 123 S. Ct. 353, 355, 154

L.Ed.2d 272 (2002). 

Because the BIA declined to address Wang’s claim that the procedural

limitations and the general non-refoulement provision of the INA should be

interpreted in light of several treaty provisions, her claim on this point is not

 Section 1231(b)(3)(A) provides that “the Attorney General may not remove an alien to 2

a country if [he] decides that the alien’s life or freedom would be threatened in that country

because of the alien’s race, religion, nationality, membership in a particular social group, or

political opinion.” 8 U.S.C. § 1231(b)(3)(A). 

 United Nations Convention Relating to the Status of Refugees, July 28, 1951, 19 U.S.T. 3

6259, T.I.A.S. No. 6577. 

 Article 33 of the 1967 Protocol provides that “No Contracting State shall expel or return 4

(“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or

freedom would be threatened on account of his race, religion, nationality, membership of a

particular social group or political opinion. United Nations Protocol Relating to the Status of

Refugees, art. 33, Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267. 

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properly before us, and we do not reach it. 

II.

Wang argues that the BIA erred in declining to exercise its discretion to

reopen her case sua sponte, pursuant to the general non-refoulement provision set

forth in 8 U.S.C. § 1231(b)(3)(A). She also challenges the constitutionality of the

provisions of the INA that prevent an alien subject to a final order of removal from

reopening her case to pursue a withholding-of-removal claim based on changed

circumstances other than those that arose in her country of nationality, but allow 

an alien with a final removal order, who returns to the United States after removal

and seeks withholding of removal under the Convention Against Torture (“CAT”)

based on changed circumstances arising outside their country (“returnee aliens”),

to apply for the same relief. She contends that the general non-refoulement

provision, 8 U.S.C. § 1231(b)(3)(A), protects her individual rights to another

hearing prior to removal. She contrasts 8 U.S.C. § 1231(a)(5) and 8 C.F.R.

§ 1241.8, which apply to returnee aliens, with 8 C.F.R. § 1003.2, which applies to

aliens with final removal orders who have not yet left the United States, and

argues that the differential treatment accorded these two classes of aliens denies

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due process and equal protection in violation of the Fifth Amendment. According

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to Wang, the rights to withholding of removal and to be free from persecution are

fundamental; thus, the differential treatment of returnee aliens, versus aliens

subject to deportation who have not yet left, is subject to strict scrutiny.

First, to the extent that Wang argues that the BIA erred in refusing to sua

sponte reopen her case, we lack jurisdiction to review its decision. See Lenis v.

U.S. Att’y Gen., 525 F.3d 1291, 1293-94 (11th Cir. 2008) (holding that we lack

jurisdiction to hear an appeal of the BIA’s denial of a motion to reopen based on

its sua sponte authority). However, we retain jurisdiction to consider

constitutional claims and questions of law under the INA raised in a properly-filed

petition for review. INA § 242(a)(2)(D); 8 U.S.C. § 1252(a)(2)(D); Ferguson v.

U.S. Att’y Gen., 563 F.3d 1254, 1259 (11th Cir. 2009). 

Under the equal protection component of the Due Process Clause, the

government must treat similarly situated persons in a similar fashion. Leib v.

Hillsborough County Pub. Transp. Comm’n, 558 F.3d 1301, 1305-06 (11th Cir.

2009). When a law classifies a person in such a way that the person is treated

 The basis for Wang’s differential treatment claim is that a returnee alien is

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allowed to pursue a withholding of removal claim based on changed

circumstances other than those that arose in their country of nationality, whereas

aliens who have not yet left the United States are limited to claiming changed

circumstances in their country of nationality in order to reopen their case. 

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differently, our level of scrutiny depends on the legislature’s basis for that

classification. Id. Because “Congress has plenary power to pass legislation

concerning the admission and exclusion of aliens,” federal classifications that

distinguish among groups of aliens are subject only to the non-demanding rational

basis review. Resendiz-Alcatrez v. U.S. Att’y Gen., 383 F.3d 1262, 1271 (11th Cir.

2004) (citations omitted). A “legislative classification subject to rational basis

review is accorded a strong presumption of validity.” Heller v. Doe, 509 U.S. 312,

319, 113 S.Ct. 2637, 2642, 125 L.Ed.2d 257 (1993). This court’s review of

enactments subject to the rational basis standard must be “a paradigm of judicial

restraint.” FCC v. Beach Commc’ns, 508 U.S. 307, 314, 113 S.Ct. 2096, 2101,

124 L.Ed.2d 211 (1993). If any reasonably conceivable set of facts can provide a

rational basis for the challenged legislative classification, we are required to

uphold such legislative classifications, and the challenging party bears the burden

to demonstrate that no conceivable basis exists to support the classification. 

Resendiz-Alcatrez, 383 F.3d at 1271 (quotation and citation omitted). 

The non-refoulement provision, § 1231(b)(3)(A), provides that “the

Attorney General may not remove an alien to a country if the Attorney General

decides that the alien’s life or freedom would be threatened in that country

because of the alien’s race, religion, nationality, membership in a particular social

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group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). Pursuant to 8 C.F.R.

§ 1003.2(c)(2), an alien subject to deportation must file her motion to reopen

within 90 days of the final removal order. 8 C.F.R. § 1003.2(c)(2); 8 U.S.C.

§ 1229a(c)(7)(A), (C)(i). However, there is no time limit on the filing of a motion

to reopen if it is based on changed country conditions arising in the country to

which removal has been ordered, and if the evidence in support of that motion is

material, and was not available or discoverable at the prior proceeding. 8 C.F.R.

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

Pursuant to 8 C.F.R. § 1241.8(a), an alien who illegally reenters the U.S.

after having been removed, or having departed voluntarily, while under a removal

order, shall be removed through reinstatement of the prior order. 8 C.F.R. §

1241.8(a). However, if such an alien expresses a fear of returning to the country

of removal, the regulations provide that she “shall be immediately referred to an

asylum officer for an interview to determine whether [she] has a reasonable fear of

persecution or torture.” Id. at § 1241.8(e). Thus, the returnee alien need not show

changed country conditions in order to bring another claim of a reasonable fear of

persecution or torture. See id.

The Supreme Court has held that motions to reopen are disfavored in

removal proceedings because “[t]here is a strong public interest in bringing

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litigation to a close as promptly as is consistent with the interest in giving the

adversaries a fair opportunity to develop and present their respective cases.” 

I.N.S. v. Abudu, 485 U.S. 94, 107, 108 S.Ct. 904, 913, 99 L.Ed.2d 90 (1988). 

Because Wang has failed to negate “every conceivable basis which might

support” (1) allowing a returnee alien who expresses fear of returning to her home

country to have an interview with an asylum officer, and (2) barring an alien, who

is subject to a removal order and has not yet left the United States, from filing an

untimely motion to reopen, except upon a showing of changed country conditions,

we conclude that Wang’s constitutional challenges are without merit. 

III. 

Wang next argues that her application for withholding of removal and

supporting documentation provided in her motion to reopen established a prima

facie case for asylum, withholding of removal, and CAT relief, because (1) she

submitted a copy of 1996 family planning regulations from Liang Jiang County in

the Fujian Province that require, inter alia, sterilization of a husband or wife

within 40 days of the birth of their second child; (2) China’s family planning

policies are being enforced against Chinese nationals with children born in China

and those with children born abroad; and (3) she had submitted certificates of

sterilization of two of her friends who live in Changle City. Wang contends that

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to verify these supporting documents would require the assistance of Chinese

government officials, and to request such assistance would be an undue burden. 

Wang also argues that the BIA erred in concluding that she had not shown that she

would be subjected to economic harm amounting to persecution. She next

contends that the State Department’s 2008 Country Report on China (“Country

Report”) shows that coercive pregnancy termination practices are used by the

Chinese government. Therefore, her fear is objectively reasonable that she, more

likely than not, would be sterilized upon being returned to China, and her motion

to reopen should have been granted because she made a prima facie showing for

withholding of removal. Wang also contends that the evidence presented

regarding China’s stricter enforcement of population planning rules established a

change in China’s country conditions, and thus, she argues, she is thereby exempt

from the 90-day filing deadline. 

We lack jurisdiction to review claims that the petitioner failed to raise

before the BIA, regardless of whether the BIA chose to sua sponte address them. 

Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250-51 (11th Cir. 2006). 

We review the BIA’s denial of a motion to reopen removal proceedings for abuse

of discretion. Li v. U.S. Att’y Gen., 488 F.3d 1371, 1374 (11th Cir. 2007). “Our

review is limited to determining whether the BIA exercised its discretion in an

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arbitrary or capricious manner.” Jiang v. U.S. Att’y Gen., 568 F.3d 1252, 1256

(11th Cir. 2009). 

An alien may file one motion to reopen removal proceedings, and such

motion generally must be filed within 90 days of the date of the BIA’s final order. 

INA § 240(c)(7)(A), (C)(i), 8 U.S.C. § 1229a(c)(7)(A), (C)(i). However, the 90-

day time limit does not apply if the motion to reopen is filed on the basis of

changed circumstances in the country of the movant’s nationality. 8 U.S.C.

§ 1229a(c)(7)(C)(ii); 8 C.F.R. §§ 1003.2(c)(3)(ii). To meet this exception, a

movant must show material evidence that was not available and could not have

been discovered or presented at the prior hearing. 8 U.S.C. § 1229a(c)(7)(C)(ii); 8

C.F.R. § 1003.2(c)(3)(ii). Under 8 C.F.R. § 1287.6, an “official document,” such

as a certificate of sterilization surgery or abortion, is required to “be evidenced by

an official publication thereof, or by a copy attested by an officer so authorized,”

but unofficial documents, such as letters from family members or neighbors need

not be so evidenced. 8 C.F.R. § 1287.6. “An alien who attempts to show that the

evidence is material bears a heavy burden and must present evidence that

demonstrates that, if the proceedings were opened, the new evidence would likely

change the result in the case.” Jiang, 568 F.3d 1252, 1256-57.

In Li, we held that an alien’s extensive, “undisputed evidence of a recent

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campaign in her home village in China of forced sterilization warranted reopening

based on changed country conditions.” Li, 488 F.3d at 1375. We noted that the

BIA in Li’s case did not find either Li’s supporting affidavit nor her mother’s

affidavit incredible, and that the background materials submitted supported Li’s

fear that Fujian Province officials had “incentives and discretion” to sterilize

women with more than one child. Id. We determined that “Li’s evidence of a

recent campaign of forced sterilization in her home village, evidence consistent

with the conclusion of recent government reports, clearly satisfied the criteria for a

motion to reopen her removal proceedings.” Id.

In Jiang, we addressed the BIA’s denial of Jiang’s motion to reopen based

on changed country conditions in China, filed after she had two children in the

United States, and in which she claimed that she feared persecution if returned to

China because her violation of China’s one-child policy would lead her to be

forcibly sterilized. Jiang, 568 F.3d at 1254. We noted that the case was

“startlingly like the case of Li” with regard to the evidential foundation presented

in each case. Id. at 1257-58. 

Jiang argued that “recent increased enforcement of the one-child policy in

the Fujian Province, and more particularly, in her hometown, reasonably led her to

fear that she too would face persecution in the form of forced sterilization if she

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were removed to China.” Id. at 1258. We held that:

[t]he BIA’s decision again overlooked, or, inexplicably

discounted, not only the two affidavits Jiang provided in

support of her petition, detailing forced sterilizations in

Jiang’s own hometown—neither of which the BIA or IJ

found incredible—but also the 2004 and 2005 Country

Reports, which unambiguously corroborated incidents of

coerced sterilization, and explicitly recognized that the

Fujian Province is known for using ‘unspecified

remedial measures’ to deal with those in violation of

family planning polices. 

Id. Accordingly, we held, “Jiang’s evidence established a prima facie case for

asylum and withholding of removal, especially in light of Li,” and directed the

BIA to reopen proceedings to consider the merits of her claims for asylum and

withholding of removal. Id.

Because Wang’s evidence failed to establish changed conditions with

respect to China’s enforcement of its one-child policy, we conclude that the BIA

correctly denied Wang’s motion to reopen. 

PETITION DENIED.

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