NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-4366

___________

BAO JIN DI FENG,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A79-321-097)

Immigration Judge: Honorable Rosalind Malloy

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

September 19, 2012

Before: SLOVITER, SMITH and COWEN, Circuit Judges

(Opinion filed: September 20, 2012)

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OPINION

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PER CURIAM

Petitioner Bao Jin Di Feng, proceeding pro se, seeks review of the Board of 

Immigration Appeals’ (“BIA”) denial of his motion to reopen. For the reasons that follow, we 

will deny his petition for review.
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I.

Feng, a citizen of China, allegedly entered the United States in May 2000. In May 

2001, Feng applied for asylum, withholding of removal, and protection under the Convention 

Against Torture (“CAT”), alleging that his wife had suffered a forced abortion in China due to 

their resistance to China’s coercive population policies. The Immigration Judge (“IJ”) made an 

adverse credibility determination and denied relief. The BIA affirmed, and Feng did not 

appeal that decision. Feng filed a motion to reopen, which the BIA denied in March 2004. 

With that motion, Feng submitted a photocopied divorce decree certificate that apparently also 

assigned him “guardian” status of his daughter. The BIA was skeptical that the decree was 

authentic, but concluded that, even assuming it was authentic, it did not undermine the BIA’s 

affirmance of the IJ’s adverse credibility determination. 

Feng filed a second motion to reopen in March 2011, arguing that he will be persecuted 

if removed to China due to his participation in Falun Gong activities since 2008, which was 

made public in a July 2010 news article. The BIA denied the motion in November 2011, 

finding that it was both untimely and number-barred. Feng filed a timely petition for review 

and a motion to stay removal. We denied the stay motion and now deny the petition for 

review. 

II.

We have jurisdiction pursuant to 8 U.S.C. § 1252(a) to review the denial of a motion to 

reopen. We review such denials for abuse of discretion. Liu v. Att’y Gen., 555 F.3d 145, 148 

(3d Cir. 2009). Under this standard, we may reverse the BIA’s decision only if it is “arbitrary, 
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irrational, or contrary to law.” Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004).

III.

A petitioner may file one motion to reopen within ninety days of a final order of 

removal. 8 U.S.C. § 1229a(c)(7)(A), (C)(i). To file a motion to reopen beyond the ninety-day 

limit, a movant must show “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 hearing.” 8 C.F.R. § 

1003.2(c)(2), (c)(3)(ii); see also Liu v. Att’y Gen., 555 F.3d 145, 150-51 (3d Cir. 2009). 

Feng claims that the BIA denied him due process and abused its discretion by failing to 

give weight to his new evidence of changed conditions in China. He argues that the 

background materials on China demonstrate that the Chinese government instituted a 

crackdown on Falun Gong practitioners in the months leading up to the 2008 Beijing 

Olympics.

The BIA correctly determined that Feng failed to satisfy the exception to the ninety-day 

limitation period for motions to reopen. The BIA considered Feng’s evidence, but noted that, 

while China’s harassment and periodic crackdowns on Falun Gong practitioners continue, 

there has been no material change in China’s treatment of Falun Gong practitioners since 

Feng’s 2002 hearing. Rather, the BIA correctly found, the only change shown is in Feng’s 

personal circumstances, given that by his own account his participation in Falun Gong began in 

2008. Accordingly, Feng has not demonstrated that the BIA abused its discretion in denying 

his motion.
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The BIA also declined to reopen the proceedings sua sponte. To the extent Feng claims 

the BIA abused its discretion, we lack jurisdiction to review that determination. See CalleVujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir. 2003). He has made no showing that his case 

presents an “exceptional situation.” See id. Furthermore, his case is not one in which the BIA 

has announced and followed “a general policy by which its exercise of discretion will be 

governed” that would have created an exception to the jurisdictional bar. See id.

IV.

For the foregoing reasons, we will deny the petition for review.