IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-60919

Summary Calendar

XIU ZHU CHEN, also known as Xia Zhen 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. A096 108 959

Before SMITH, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:*

Xiu Zhu Chen, a native and citizen of China, petitions for review of the 

Board of Immigration Appeals’ denial of her 2012 motion to reopen her 2003 

removal proceedings. Denial of such motions is reviewed under “a highly 

deferential abuse-of-discretion standard”. Gomez-Palacios v. Holder, 560 F.3d 

354, 358 (5th Cir. 2009). The BIA’s decision will be upheld “as long as it is not 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

September 24, 2014

Lyle W. Cayce

Clerk

 

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No. 13-60919

capricious, without foundation in the evidence, or otherwise so irrational that 

it is arbitrary rather than the result of any perceptible rational approach”. Id.

A motion to reopen must be filed no later than 90 days after the date on 

which the final administrative decision was rendered. 8 C.F.R. § 1003.2(c)(2)

(“[A] party may file only one motion to reopen deportation or exclusion 

proceedings (whether before the Board or the Immigration Judge) and that 

motion must be filed no later than 90 days after the date on which the final 

administrative decision was rendered in the proceeding sought to be reopened

. . .”.). This time bar does not apply, however, if 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 

hearing”. § 1003.2(c)(3)(ii).

In this instance, the BIA, as required, properly compared the evidence of 

country conditions submitted with the motion to reopen with the evidence that 

existed at the time of Chen’s 2003 merits hearing. E.g., Gotora v. Holder, No. 

13-60165, 2014 WL 1779233, at *2 (5th Cir. 6 May 2014) (citation omitted). 

The 2003 Department of State report on China, which was submitted during 

Chen’s original proceedings, establishes that “government respect for religious 

freedom remained poor” and provides details of government treatment of 

various religious groups. Bureau of Democracy, Human Rights, and Labor, 

2003 Country Reports on Human Rights Practices: China (Includes Tibet, Hong 

Kong, and Macau) Department of State, (25 Feb. 2004), http://www.state.

gov/j/drl/rls/hrrpt/2003/27768.htm. 

The more recent State Department reports on China submitted with the

motion to reopen support the BIA’s denial of Chen’s motion because they do 

not establish a material change in country conditions since the time of Chen’s

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prior proceedings; rather, they confirm “continuing history of persecution”. 

Iqbal v. Holder, 519 F. App’x 243, 244 (5th Cir. 2013). 

Accordingly, Chen fails to demonstrate the BIA abused its discretion. 

Gomez-Palacios, 560 F.3d at 358. (This court, therefore, need not examine her

claim that she is prima facie eligible for asylum, relief from removal, and 

protection under the Convention Against Torture. Iqbal, 519 F. App’x at 244.)

DENIED.

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