IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-60848

Summary Calendar

LIBIN XIE,

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. A088 309 796

Before WIENER, ELROD, and GRAVES, Circuit Judges.

PER CURIAM:*

Petitioner Libin Xie, a native and citizen of the People’s Republic of China,

petitions us to review a Board of Immigration Appeals (BIA) decision denying

her motion to reopen asylum proceedings based on her newfound practice of

Falun Gong in the United States. We deny the petition. 

Although the decision whether to grant or deny a motion to reopen is

discretionary, we have jurisdiction because the BIA’s discretion is not statutorily

based. See Kucana v. Holder, 130 S. Ct. 827, 834-40 (2010). A highly deferential

United States Court of Appeals

Fifth Circuit

F I L E D

November 1, 2012

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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No. 11-60848

abuse of discretion standard applies to review of the BIA’s denial of a motion to

reopen. Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005). “Such discretion

is not to be disturbed so long as it is not capricious, racially invidious, utterly

without foundation in the evidence, or otherwise so aberrational 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) (internal

quotation marks and citation omitted). The alien seeking asylum has the burden

of establishing that she is a refugee, meaning, as relevant here, that she has a

well-founded fear of persecution in her home country on the basis of her race,

religion, nationality, membership in a particular social group, or political

opinion. 8 U.S.C. §§ 1101(a)(42)(A); 1158(b)(1)(B)(i); Zhang v. Gonzales, 432 F.3d

339, 344 (5th Cir. 2005).

Xie’s argument that the BIA abused its discretion in affording limited

weight to the documentary evidence submitted in conjunction with her motion

to reopen because the evidence was not authenticated is unpersuasive. See

Matter of H-L-H- & Z-Y-Z-, 25 I&N 209, 214-215 (BIA 2010), abrogated on other

grounds by Huang v. Holder, 677 F.3d 130 (2nd Cir. 2010). Xie also claims that

the BIA engaged in impermissible factfinding in determining that her documents

were unauthenticated. She failed properly to exhaust this claim, however, and

we lack jurisdiction to consider it in the instant petition. See 8 U.S.C. § 1252(d);

Omari v. Holder, 562 F.3d 314, 319-21 (5th Cir. 2009).

Xie argues that the BIA erred in relying on the prior unchallenged adverse

credibility determination of the Immigration Judge (IJ) in limiting the weight

it gave the documentary evidence. Despite Xie’s argument on appeal, we have

in persuasive unpublished cases held as we do here – that the BIA does not

abuse its discretion by basing its denial of a motion to reopen on an IJ’s prior

adverse credibility ruling. See Mir v. Gonzales, 207 F. App’x 498, 498-99 (5th

Cir. 2006); Kindia v. Gonzales, 155 F. App’x 752, 753 (5th Cir. 2005).

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Xie’s argument that she established a well-founded fear of future

persecution based on her practice of Falun Gong is likewise without merit. Xie’s

generalized claim of harsh or improper treatment of Falun Gong practitioners

in China did not demonstrate prima facie eligibility for the relief sought. 

Accordingly, the BIA acted within its broad discretion in denying reopening. See

Zhao, 404 F.3d at 303. Xie’s petition for review is DISMISSED IN PART for lack

of jurisdiction and DENIED IN PART. 

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