IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-60801

Summary Calendar

YOU BO LI,

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. A073 577 666

Before KING, JOLLY, and GRAVES, Circuit Judges.

PER CURIAM:*

You Bo Li, a native and citizen of China, was ordered deported in absentia

after he failed to appear at a 1997 deportation hearing. In 2008, he filed a second

motion to reopen his deportation proceedings. Li – who, with his Chinese-citizen

wife, has had three children in the United States since he was ordered deported

– claims to have new evidence that he will be forcibly sterilized if he returns to

China. In his petition for review, Li argues that the Board of Immigration

United States Court of Appeals

Fifth Circuit

F I L E D

August 4, 2011

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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Appeals (BIA) abused its discretion by dismissing his appeal from the

immigration judge’s (IJ’s) order denying the motion to reopen. 

This court has jurisdiction to review the denial of an untimely motion to

reopen based on changed circumstances in the alien’s home country. Panjwani

v. Gonzales, 401 F.3d 626, 632 (5th Cir. 2005). We review the denial of a motion

to reopen “under a highly deferential abuse-of-discretion standard,” upholding

the Board’s decision so long as it is not capricious, racially invidious, without

foundation in the evidence, or otherwise so irrational 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). 

The numerical and time limitations on motions to reopen do not apply

where the motion is 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 proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); see 8

C.F.R. § 1003.2(c)(3)(ii).

Li does not dispute that his motion to reopen is his second and that it is

facially untimely. Instead, he argues that the IJ and BIA abused their discretion

in determining that he had not shown changed country conditions sufficient to

authorize consideration of his motion to reopen. He argues that the IJ abused

her discretion by failing to adequately consider his arguments and evidence and

that the BIA compounded this error. Additionally, Li contends that the BIA

erred in summarily dismissing his criticisms of the United States Department

of State’s 2007 Asylum Profile for China (2007 Asylum Profile). He also

challenges the BIA’s giving minimal weight to certain documents he submitted

with his motion to reopen on the basis that the documents were not notarized or

authenticated and were obtained for purposes of the motion to reopen. 

Li, however, has not shown that the BIA abused its discretion in

determining that the evidence he submitted didnot show changed circumstances

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in China. Rather, the record demonstrates that the BIA considered the

admissible evidence and his arguments, including his challenge to the reliability

to the 2007 Asylum Profile, and determined, inter alia, that the evidence did not

show changed country conditions regarding the treatment of violators of the

family planning law or Chinese citizens returning to the country with United

States-born children. Li also has not shown that the BIA abused its discretion

in giving minimal weight to unauthenticated notices from village family

planning committees regarding Li and his wife, unauthenticated certificates of

sterilization of alleged violators of the family planning law, and letters from such

alleged violators. See 8 C.F.R. § 287.6(b)(1).

Li additionally argues in his petition that he should not be precluded from

reopening his deportation proceedings based on a change in the enforcement of

China’s family planning policy. In his brief before the BIA, he argued only that

he would be subject to sterilization based on the family planning policy. He did

not argue to the BIA that there was a change in procedure, i.e., that enforcement

of the policy had changed or increased since the order of removal. As this issue

is unexhausted, we lack jurisdiction to consider it. See Omari v. Holder, 562

F.3d 314, 317-19 (5th Cir. 2009). 

DISMISSED IN PART FOR LACK OF JURISDICTION; DENIED IN

PART.

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