Yue Zhu Qiu v. U.S. Attorney General

USCA11 Case: 22-10216 Document: 31-1 Date Filed: 02/01/2023 Page: 1 of 8 [DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 22-10216 Non-Argument Calendar ____________________ YUE ZHU QIU, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. ____________________ Petition for Review of a Decision of the Board of Immigration Appeals Agency No. A088-777-109 ____________________ USCA11 Case: 22-10216 Document: 31-1 Date Filed: 02/01/2023 Page: 2 of 8 2 Opinion of the Court 22-10216 Before ROSENBAUM, JILL PRYOR, and LAGOA, PER CURIAM: Yue Qiu, a native and citizen of China, appeals from the Board of Immigration Appeals’s (“BIA”) order dismissing both her motion to reopen and her motion to remand proceedings to an Im- migration Judge (“IJ”). Below, Qui argued that her proceedings should be reopened based on her eligibility for asylum, withhold- ing of removal, or relief under the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treat- ment or Punishment (“CAT”) based on the birth of her third child, that she will face forced sterilization if she must return to China, and based on her conversion to Christianity. On appeal, she argues that her proceedings should be reopened because she is prima facie eligible for asylum based on her conversion to Christianity. As we explain below, we must dismiss in part and deny in part Qiu’s ap- peal. We review only the decision of the BIA except to the extent the BIA expressly adopts the IJ’s opinion. Lopez v. U.S. Att’y Gen., 504 F.3d 1341, 1344 (11th Cir. 2007). When the BIA agrees with the IJ’s findings but makes additional observations, we review both de- cisions. Singh v. U.S. Att’y Gen., 561 F.3d 1275, 1278 (11th Cir. 2009). We construe a motion to remand as a motion to reopen proceedings, the denial of which we review for an abuse of discre- tion. Ali v. U.S. Att’y Gen., 643 F.3d 1324, 1329 (11th Cir. 2011). This review is limited to determining whether the BIA exercised its USCA11 Case: 22-10216 Document: 31-1 Date Filed: 02/01/2023 Page: 3 of 8 22-10216 Opinion of the Court 3 discretion in an arbitrary or capricious manner. Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1319 (11th Cir. 2009). The moving party bears a heavy burden, as motions to reopen are disfavored, especially in removal proceedings. Id. We cannot consider facts that were not raised before the BIA. See Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004). Somewhat relatedly, we may review an argument only if the peti- tioner “has exhausted all administrative remedies available to the alien as of right.” INA § 242(d)(1), 8 U.S.C. § 1252(d)(1). We have said that the exhaustion requirement is jurisdictional, so the failure to exhaust precludes our review of a claim that was not presented to the BIA. Lin v. U.S. Att’y Gen., 881 F.3d 860, 867 (11th Cir. 2018). “This is not a stringent requirement” and requires only that the petitioner “previously argued the core issue now on appeal be- …

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