09-1579-ag

Ye v. Holder

BIA

A073 676 645

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER

FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF

APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER

IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY

ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

4 New York, on the 6 day of July, two thousand ten. th

5

6 PRESENT:

7 DENNIS JACOBS,

8 Chief Judge,

9 DEBRA ANN LIVINGSTON,

10 DENNY CHIN,

11 Circuit Judges.

12 _______________________________________

13

14 LIN YING YE,

15 Petitioner, 

16

17 v. 09-1579-ag

18 NAC

19 ERIC H. HOLDER, JR., UNITED STATES

20 ATTORNEY GENERAL,

21 Respondent.

22 _______________________________________

23

24 FOR PETITIONER: Oleh R. Tustaniwsky, Brooklyn, New

25 York.

26

27 FOR RESPONDENT: Tony West, Assistant Attorney

28 General; Blair T. O’Connor,

29 Assistant Director; Ari Nazarov,

30 Attorney, Office of Immigration

31 Litigation, United States Department

32 of Justice, Washington, D.C.
2

1 UPON DUE CONSIDERATION of this petition for review of a

2 decision of the Board of Immigration Appeals (“BIA”), it is

3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

4 review is DENIED.

5 Lin Ying Ye, a native and citizen of the People’s

6 Republic of China, seeks review of a March 17, 2009, order

7 of the BIA denying the third motion to reopen she filed

8 after being found not credible and ordered deported. In re

9 Lin Ying Ye, No. A073 676 645 (B.I.A. Mar. 17, 2009). We

10 assume the parties’ familiarity with the underlying facts

11 and procedural history of this case.

12 We review the BIA’s denial of Ye’s motion to reopen for

13 abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d

14 Cir. 2006). An alien can file a single motion to reopen and

15 must do so within 90 days of the final administrative

16 decision. 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2). 

17 However, there is no time or number limitation if the alien

18 establishes materially “changed country conditions arising

19 in the country of nationality.” 8 U.S.C. § 1229a(c)(7)(C)

20 (ii); see also 8 C.F.R. § 1003.2(c)(3)(ii). Here, the BIA

21 did not abuse its discretion in denying Ye’s motion to

22 reopen, which was indisputably untimely and number-barred. 

23
3

1 The BIA did not abuse its discretion in determining

2 that the evidence Ye submitted in support of her motion to

3 reopen is “inadequate to show changed circumstances or

4 conditions in China . . . such that her motion would be

5 excepted from the usual 90-day filing deadline.” First, the

6 BIA reasonably declined to give weight to an unauthenticated

7 document purportedly issued by a village committee in China

8 in light of the IJ’s prior adverse credibility finding. See

9 Zheng v. Gonzales, 500 F.3d 143, 148 (2d Cir. 2007). 

10 Second, the BIA, after considering the remainder of Ye’s

11 evidence, reasonably concluded that Ye failed to “establish

12 prima facie eligibility for asylum, i.e., ‘a realistic

13 chance’ that [s]he will be able to establish eligibility.” 

14 Poradisova v. Gonzales, 420 F.3d 70, 78 (2d Cir. 2005).

15 Contrary to Ye’s argument, the record does not reflect

16 a failure by the BIA to consider any of the evidence she

17 submitted. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471

18 F.3d 315, 338 (2d Cir. 2006); see also Wei Guang Wang v.

19 BIA, 437 F.3d 270, 275 (2d Cir. 2006). Finally, because Ye

20 presented no evidence in support of her CAT claim separate

21 from the evidence presented in support of her asylum claim

22 (which failed to demonstrate prima facie eligibility for
4

1 relief), the BIA did not abuse its discretion in finding her

2 ineligible for CAT relief. See Kaur v. BIA, 413 F.3d 232,

3 233 (2d Cir. 2005) (per curiam).

4 For the foregoing reasons, the petition for review is

5 DENIED. As we have completed our review, any stay of

6 removal that the Court previously granted in this petition

7 is VACATED, and any pending motion for a stay of removal in

8 this petition is DISMISSED as moot. Any pending request for

9 oral argument in this petition is DENIED in accordance with

10 Federal Rule of Appellate Procedure 34(a)(2), and Second

11 Circuit Local Rule 34.1(b).

12 FOR THE COURT: 

13 Catherine O’Hagan Wolfe, Clerk

14