Xue Nong Gao v. Attorney General, 555 F.3d 145, 148 3d Cir. 2009 . Under this standard, we will…

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-1316
___________
XUE NONG GAO,
Petitioner
vs.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A78-709-575)
Immigration Judge: Honorable Nicole Kim
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 5, 2009
Before: FUENTES, WEIS and GARTH, Circuit Judges
Opinion filed : August 06, 2009
___________
OPINION
___________
PER CURIAM.
Xue Nong Gao petitions for review of an order of the Board of Immigration
Appeals (“BIA”) denying his motion to reopen. For the reasons that follow, we will deny
his petition for review.

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I.
Gao, a native and citizen of China, entered the United States in October
1999. He was placed into removal proceedings, and thereafter sought asylum,
withholding of removal, and relief under the Convention Against Torture. In December
2001, the IJ denied Gao’s application for asylum based on her finding that Gao was not
credible and that he had submitted fraudulent documents in support of his claim that his
wife was forced to undergo an abortion in China. In February 2003, the BIA agreed with
the IJ’s determination and dismissed his appeal. It does not appear that Gao sought
review of the BIA’s decision.
Four years later, Gao filed a motion to reopen before the BIA, alleging that
he joined the China Democracy Party (“CDP”) and, as a member of the CDP, had
participated in protest rallies in front of the Chinese Consulate in New York City and the
White House in Washington, D.C., distributed propaganda materials in the New York
area, expressed his political opinion in two articles published on the internet, and
recruited members for the CDP. (J.A. 159-62.) He claimed that this behavior, coupled
with the increased emphasis on prohibiting political dissent in China in recent years,
warranted the reopening of his removal proceedings. (J.A. 172-80.) He also argued that,
pursuant to 8 C.F.R. § 208.4(a)(4)(i)(B), he should be permitted to file a successive
asylum application based on the change in his personal circumstances. (J.A. 170-71.)
The BIA held that Gao had not established a change in country conditions in China, nor

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had he established a prima facie case that he would be persecuted if returned to China due
to his participation in the CDP. (J.A. 18-19.) The BIA therefore concluded that Gao had
not satisfied the standard for an untimely motion to reopen. (J.A. 19.) The BIA further
concluded that the circumstances described by Gao did not warrant the exercise of its
limited discretion to sua sponte reopen his asylum proceedings, and that because he was
subject to a final order of removal, he was not eligible to submit a successive asylum
application based on changed personal circumstances. (J.A. 18-19.) Accordingly, the
BIA denied Gao’s motion to reopen. Gao timely filed a petition for review.
II.
We have jurisdiction over this petition for review pursuant to 8 U.S.C.
§ 1252. We review the BIA’s denial of a motion to reopen for abuse of discretion. See
Liu v. Attorney General, 555 F.3d 145, 148 (3d Cir. 2009). Under this standard, we will
reverse the BIA’s decision only if it is “arbitrary, irrational, or contrary to law.” Sevoian
v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002).
III.
Gao’s motion to reopen was clearly untimely. See 8 C.F.R. § 1003.2(c)(2).
As the BIA held, his alleged change in personal circumstances – his membership in and
activities with the CDP – will not suffice to extend the time in which to reopen. See 8
C.F.R. § 1003.2(c)(3)(ii). An exception to this rule exists for motions that rely on
evidence of “changed circumstances arising in the country of nationality . . . if such

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evidence is material and was not available and could not have been discovered or
presented at the previous proceeding.” Id. While Gao may have alleged a change in
country conditions in his motion to reopen, we cannot conclude that the BIA abused its
discretion in denying his motion. In INS v. Abudu, 485 U.S. 94 (1988), the Supreme
Court set forth three bases on which the BIA may deny a motion to reopen:
First, it may hold that the movant has not established a prima
facie case for the underlying substantive relief
sought. . . . Second, the BIA may hold that the movant has not
introduced previously unavailable, material evidence, or, in an
asylum application case, that the movant has not reasonably
explained his failure to apply for asylum initially. . . . Third,
in cases in which the ultimate grant of relief is discretionary
(asylum, suspension of deportation, and adjustment of status,
but not withholding of deportation), the BIA may leap ahead,
as it were, over the two threshold concerns (prima facie case
and new evidence/reasonable explanation), and simply
determine that even if they were met, the movant would not
be entitled to the discretionary grant of relief.
Id. at 104-05. As we have explained, “motions to reopen immigration proceedings are
‘traditionally disfavored . . . ’” and therefore we “review deferentially the Board’s
decision not to reopen [petitioner’s] case.” Sevoian, 290 F.3d at 171-72.
In the instant case, the BIA concluded that Gao failed to establish a prima
facie case of entitlement to the underlying relief sought: asylum, withholding of removal
and relief under the Convention Against Torture. To that end, the BIA held: “That the
respondent will be persecuted if returned to China due to his participation in the CDP is
speculative in nature and he has failed to meet the ‘heavy burden’ of showing that a

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motion to reopen is warranted. The respondent has not provided adequate new
information, errors of law or fact, evidence, or argument sufficient to grant the motion.”
(J.A. 20.) The BIA’s conclusion is not “arbitrary, irrational, or contrary to law.”
Sevoian, 290 F.3d at 174.
Additionally, the BIA correctly held that an asylum applicant who is subject
to a final order of removal may not file a successive asylum application outside of the 90-
day reopening period based solely on a change in personal circumstances. See Liu, 555
F.3d at 150. Finally, under the circumstances presented here, we lack jurisdiction to
review the BIA’s decision not to exercise its discretion to sua sponte consider Gao’s
untimely motion to reopen. See Cruz v. Attorney General, 452 F.3d 240, 250 (3d Cir.
2006).
Based on the foregoing, we will deny the petition for review.
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