### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 13-60102 Summary Calendar

JIN YAU CHEN,
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. A077 740 694

Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges. PER CURIAM: * Jin Yau Chen, a n ative and citizen o f C hina, was o rdered deported in 2000, and his applica t i o n s for asylum, withholding, and protection under the Convention Against Torture (CAT) were denied. Over 1 0 y ears late r , Chen returned to the United States and filed a m oti o n t o r eopen with the Board of Immigration Appeals (BIA), accompanied by an application for a s yl um, withholding, and re l i e f u n der the CAT, claiming that reopening removal proceedings was warranted because he h ad conver t e d to Christianity while U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D Novem ber 19, 2013 Ly l e W . Cayce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 13-60102 Document: 00512446510 Page: 1 Date Filed: 11/19/2013No. 13-60102

living i n China and had allegedly suffered p e rsecution in China on account of his religion. H e a sserted that if he returned to C h i n a , h e would be arrested and sentenced to imprisonment. The Board denied Chen’s motion to reopen. The Board determined that Chen’s motion t o reopen was untimely a nd did not qualify for the exception to t h e t i m e limit to apply for asylum based on changed country conditions. The Board found t h a t Chen’s evidence submitted in support of his claim was “unpersuasive.” S p ecifically, the Board noted that the proffered evidence from China was not authenticated as required by r e gulations, or in any other m anner, citing 8 C.F.R. § 2 8 7

. 6 ; M atter of H

-L-H- & Z-Y-Z- , 25 I. & N. Dec. 209 (BIA 2010); rev’d on other grounds by Hui L in Huang v. Holder , 677 F.3d 130 (2d Cir. 2012); and Matter of S-Y-G- , 24 I. & N. Dec. 247 (BIA 2007)). Further, the Board found that it was unclear from the translated notice pur p ortedly from the Jiangu a n g Villagers’ Committee as to who generated the notice and, “without further indicia of reliability,” t h e Board found that it was unable to determine that this document c a r ried C hen’s burden of proof for reopening. The Board noted that Chen’s employment termination n otice w a s unsigned and

un a u t h e n t icated, a nd that the letter from his friend who c l aimed t o be an eyewitness to Chen’s arrest was unsworn and was not subject to cross-examination. Addressing Chen’s claim that h e feared r eturning to China because the Chinese government was still looking for him, the Board stated that, in light of the e arlier adverse credibility finding b y the Immigration Judge (IJ), coupled with the lack of reliable evidence submitted with the motion to reopen, it found no reason to except Chen from the timeliness regulations set forth in 8 C.F.R. § 1003.2(c). In his petition for review, Chen argues that the BIA abused its discretion in denying his motion to r eopen because he s ubmitted a p rima f acie case of p ast persecution in China and a well-founded fear of f uture persecution. He contends that the B IA abused its discretion in denying his motion to reopen on th e ground
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that he failed to carry his b urden of proof because his documentary evidence was not authenticated. He states that he is willing to testify before the IJ concerning how and where he received the documents to prove they are genuine. He argues that it is unfair to deny his motion based on failure to authenticate documents because it i s v e r y difficult t o get the Chinese government to cooperate in authenticating documents. We h ave j urisdiction to review the denial of an untimely motion t o reopen b a s e d on changed circumstances in the alien’s home country. Panjwan i v . Gonzales , 4 01 F.3d 626, 632 (5th Cir. 2005). We review the d e nial of a motion to reopen “under a highly deferential abuse-of-discretion standard,” upholding the Board’s decision s o l o n g as it i s not capricious, racially invidious, without foundation in the evidence, or otherwise so irrational that it is arbitrary rather than the result of any perceptib le rational approach. Manzano-Garcia v. Gonzales , 413 F.3d 462, 469 (5th Cir. 2005). Motions to reopen must be “filed within 90 days of the date o f entry o f a f i n a l administrative o rder of removal.” 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). However, the filing periods

are n o t a p plicable if the motion to reopen 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 a nd was not available and would not have been discovered or p resented at the previous p roceeding.” § 1229a(c)(7)(C)(ii); § 1003.2(c)(3)(ii); Zhao v. Gonzales , 404 F.3d 295, 304 (5th Cir. 2005). Section 287.6(b)(1) o f Title 8 of the Code of Federal Regulations provides that a foreign record “shall be evidenced b y an official publication thereof, or by

a copy attested by an officer so auth o r i z e d

. ” C hen does n ot di spute that the village certificate and his other documents were not authenticated as required by the regulation or i n any other manner as found by the Board. He seeks to

es t ab li s h the reliability of the document by means of his testimony and other testimony and affidavits which he would present at a hearing before the IJ.
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Chen c ould have provided this information i n affidavits accompanying his motion to reopen. See Chen v . A t t o rney General of U.S. , 676 F.3d 112, 117 (3d Cir. 2011) (holding that the I J and BIA p roperly discounte d t he village committee notice as unauthenticated, noting t hat the p roper means of authenticatio n would be an affidavit from the p erson b y whom the document was obtained). The BIA did not abuse its discretion i n denying Chen’s motion to reopen. See Gen Lin v. Attorney General U.S

. , 7 0 0 F

. 3 d 6 83, 686-88 ( 3d. Cir 2012) (holding that the BIA did not abuse its discretion in denying a motion to reopen
on the ground that alien f ailed to properly authenticate documents h e submitted to support his claim that he would be arrested if he returned to China because of his religious practices); Matter of H-L-H- & Z-Y-Z- , 25 I. & N. Dec. 209 (BIA 2010) (holding that unsigned and unauthenticated letter f r om a village committee was entitled to minimal w e i gh t); rev’d on other grounds by Hui Lin Huang v. Holder , 677 F.3d 130 (2d Cir. 2012). Chen argues that the BIA denied him due process in failing to remand his

case to the IJ f

or reception o f evidence a nd t estimony. Chen cannot e stablish a due process violation because the decision whether to grant a motion t o reopen is purely discretionary, and “the denial of discretionary relief does not rise to the level of a constitutional violation even if the moving party had been eligible for it.” Altamirano-Lopez v . Gonzales , 4 35 F .3d 547, 550 (5th Cir

. 2 006) (internal quotation marks, citations, and brackets omitted). PETITION FOR REVIEW DENIED.

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