NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 13

- 1945

____________ SHAN EN ZHANG; JUAN CHEN, a/k/a KO

- MIN TSAO,

Petitioners

v. ATTORNEY GENERAL UNITED STATES OF AMERIC A

On Petition for Review of an Order of the Board of Immigration Appeals (Agency Nos. A089

- 252

- 304 & A095

- 710

- 240) Immigration Judge: Alberto J. Riefkohl

Submitted under Third Circuit LAR 34.1(a)

on November 7, 2013 Before: GREENAWAY, Jr., VANASKIE and ROTH, Circuit Judges

(Opinion filed : December 13, 2013 )

O P I N I O N

ROTH , Circuit Judge :2

Shan En Zhang and his wife Juan Chen seek review of a final order of removal rendered by th e Board of Immigration Appeals (BIA) denying a motion to reopen their proceeding. We will deny the petition for review

. I. Background Petitioners, Zhang and Chen , are citizens of the People’s Republic of China. Chen
entered the United States without val id documents on May 29, 2005 , and was subject to removal proceedings after the Department of Homeland Security issued a Notice to Appear under the Immigration & Nationality Act (INA) , 8 U.S.C. § 1182(a)(7)(A)(i)(1 )

. Zhang arrived in the United States on A ugust 4, 2007, also without valid entry documents , after being smuggled from China

. Petitioners subsequently met in the United States and registered their marriage in New York on December 12, 2007. The Immigration Judge (IJ) consolidated the cases for Zh ang and Chen, who had both applied for asylum, withholding of removal, and relief under t he Convention Against Torture ( CAT), claiming persecution by Chinese authorities for their practice of Falun Gong. At the merits hearing, Zhang claimed that he depart ed China after Chinese authorities detained and beat him for his practice of Falun Gong. Chen stated that she began her practice of Falun Gong after meeting Zhang and that together they attended Falun Gong demonstrations to protest China’s suppression of Falun Gong. On June 16, 2008, the IJ issued a n oral decision, finding that Zhang failed to sufficiently corroborate his claims and that Chen lacked evidence to support her claim s . The IJ d enied Petitioners’ applications. On October 30, 2009, the BIA dis missed the ir appeal.3

On December 30, 2009, Petitioners concurrently filed their first motion to reopen before the BIA, claiming that they have a well

- founded fear of future persecution because certain Chinese residents in America discovered Zhang’s involv ement in Falun Gong and reported his activities in China . Zhang contended that government cadres had confronted his parents about his Falun Gong involvement and told them that Zhang must return to China for punishment . In addition, Petitioners requested that the October 30, 2009, BIA decision be reissued. On April 27, 2010, the BIA reissued its decision and denied the motion to reopen. We denied Petitioners’ appeal on April 15, 2011. Zhang v. Att’y Gen. , 423 Fed. Appx. 243 (3d Cir. 2011). The instant proceedings concern Petitioners’ second motion to reopen, filed on October 2, 2012, in which Petitioners argue d that their motion should not be barred by the 90

- day time requirement because they can show that country conditions have worsened in China for F alun Gong practitioners. Chen argued to the BIA that Chinese authorities v isited her mother in China, where they cautioned her that Chen must return to China for severe punishment

. Petitioners submitted additional evidence in support of their motion to r eopen, including a local v illage notice stating that Chinese authorities will punish Chen for her Falun Gong participation, an affidavit from Chen’s mother averring the same, a 2007 asylum report fr om the U.S. Department of State, and several news articles regarding Falun Gong punishment in China

. On March 15, 2013, the BIA found that Petitioners’ evidence was insufficient to establish that treatment of Falun Gong practitioners had materially changed to excuse the untimely and number

- barred motion to reop en. First, “[t]o the contrary, the background4

evidence reflects that Falun Gong was banned by the Chinese government in July 1999 prior to respondent’s June 2008 hearing,” and that any continuing mistreatment “does not reflect a material change in circums tances, but rather, a continuation of practices that have existed for many years in China.” Second, the BIA found that the evidence submitted in support of “changed circumstances” was speculative and unauthenticated. Finally, with respect to Chen, the B IA determined “that she began practicing Falun Gong in 2008, which is a change in personal circumstances that does not constitute a change ‘arising in’ China” to meet the exception to the 90

- day time limit.
II. Analysis A motion to reopen before the BI A must be filed within 90 days after the date of the final administrative decision “in the proceeding sought to be reopened. ” 8 C.F.R. § 1003.2(c)(2). The 90

- day time limit, however, does not apply where the motion to reopen is “based on changed circumst ances 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)(3) (ii); 8 U.S.C. § 1229a(c)(7)(C)(ii). Zhang and Chen have petitioned for review of the BIA’s denial of their motion to reopen. We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1) . We review the BIA’s denial of a motion to reopen for abuse of discretio n. Immigration & Naturalization Serv. v. Doherty , 502 U.S. 314, 323 (1992) ; Sevoian v. Ashcroft , 290 F.3d 166, 174 (3d Cir. 2002). The BIA’s factual determinations must be upheld if “supported by reasonable, substantial, and probative evidence on the rec ord considered as a whole.” Immigration &5

Naturalization Serv. v. Elias

- Zacarias , 502 U.S. 478, 481 (1992) (internal quotations omitted); Guo v. Ashcroft , 386 F.3d 556, 561 (3d Cir. 2004). Because Petitioners’ motion to reopen was not filed with the BIA within 90 days of the April 27, 2010, decision and the evidence presented did not support changed conditions in China, the BIA did not abuse its discretion in denying their motion to
reopen the proceedings . The BIA’s determination that Petitioners failed to demonstrate changed country conditions in China is su pported by substantial evidence, which shows not that China’s treatment of Falun Gong practitioners has worsened but that, after the merits hearing , China’s response to Falun Gong has remained constan t. Zheng v. Att’y
Gen. , 549 F.3d 260, 266 (3d Cir. 2008). Moreover , the affidavit and v illage no tice were not authenticated and otherwise do not indicate punishment for Falun Gong practitioners that is more severe than at the time of the merits hearing. Moreover, as to Chen, t he only change in circumstance s that she could demonstrate was her adoption of F alun Gong, which she contends began when she met her husband in the United States. We have held , however, that such a change in “personal circumstance s ” does not constitute a change in country conditions in China to excuse an alien from complying with a time limit on a motion to reopen under § 1003.2(c)(3)(ii)

. Liu v. Att’y Gen. , 555 F.3d 145, 149

- 51 (3d Cir. 2009). Accordingly, for the foregoing reas ons , w e will deny the petition for review.