### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

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 Immigr a t i o n Ap peals (BIA) decision denying h e r motion to reopen asylum proceedings based on her newfound prac t i c e o f Falun Gong in the United States. We deny the petition. Although the decision whether to grant or deny a motion to r e o p e n is discretionary, we h av e j uri sdiction because the BIA’s discretion is not statutorily based. See Kucana v. Holder , 130 S. Ct. 827, 834-40 (2010). A highly deferential U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Novembe r 1, 2 012 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 11-60848 Document: 00512039955 Page: 1 Date Filed: 11/01/2012No. 11-60848

abuse of discretion standard applies to review of the BIA’s denial of a motion to reopen. Zha o 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 i n t h e evidence, or otherwise so aberrational that it is arbitrary rather th a n the result of any perceptible rational approach.” M a nzano-Garcia v. Gonzales , 413 F.3d 462, 469 (5th Cir. 2005) (internal quotation marks and citation omitt e d)

. Th e 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 b a s i s o f her race, religion, nationa l ity, membership in a particular social group, or political opinion. 8 U.S.C. §§ 1101(a) ( 4 2 ) ( A ) ; 1 1 5 8 (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 affo r ding limited weight to the documentary evidence submitted in conjunction with her motion to reopen because the evide n c e w a s 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 engage d i n i m p e r m i s s ib l e f ac tf i n di n g i n d etermining 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. 2 009). Xie argues that the BIA erred in relying on the prior unchallenged adverse credibility determination of the Immigration Jud g e (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 h e r e – that the BIA does not abuse its d iscretion by basing its denial of a motion to reopen on an IJ’s prior adverse credibility ruling. See Mir v. Gonza le s , 2 07 F. App’x 498, 498-99 (5th Cir. 2006); Kindia v. Gonzales , 155 F. App’x 752, 753 (5th Cir. 200 5).

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Xie’s argument that she established a well-founded fear o f f uture persecution based on her practice of Falun Gong is likewise without merit. Xie’s generalized claim of harsh o r i m p roper treatment of Falun Gong practitioners in China did not d e m o n s t rate 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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