10-110-ag

Ye v. Holder BIA A077 993 844 

### UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 

# SUM MARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENT IAL 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 24 day of November, two thousand ten. th 5 6 PRESENT: 7 ROGER J. MINER, 8 JOSEPH M. McLAUGHLIN, 9 ROBERT A. KATZMANN, 10 C ircuit Judges . 11

_____________________________________ 12 13 DE JIN YE, 14 Petitioner , 15 16 v. 10-110-ag 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent . 21

_____________________________________ 22 23 FOR PETITIONER: Peter L. Quan, New York, New York. 24 25 FOR RESPONDENT: Tony West, Assistant Attorney 26 General; Anh-Thu P. Mai-Windle, 27 Senior Litigation Counsel; Arthur L. 28 Rabin, Attorney, Office of 29 Immigration Litigation, Civil 30 Division, United States Department 31 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 Petitioner De Jin Ye, a native and citizen of the 6 People’s Republic of China (“China”), seeks review of a 7 December 17, 2009 decision of the BIA denying his motion to 8 reopen. In re De Jin Ye, No. A077 993 844 (B.I.A. Dec. 17, 9 2009). We assume the parties’ familiarity with the 1 0 underlying facts and procedural history of this case. 1 1 We review the BIA’s denial of a motion to reopen for 1 2 abuse of discretion. Ali v. Gonzales , 448 F.3d 515, 517 (2d 1 3 Cir. 2006). We review the BIA’s evaluation of country 1 4 conditions evidence submitted with a motion to reopen under 1 5 the substantial evidence standard. Jian Hui Shao v. 1 6 Mukasey , 546 F.3d 138, 169 (2d Cir. 2008). 1 7 It is beyond dispute that Ye’s motion to reopen was 1 8 untimely, as it was filed almost five years after the 1 9 agency’s order of removal became final. See 8 C.F.R. 2 0 § 1003.2(c)(2). However, this time limitation does not 2 1 apply to a motion to reopen asylum proceedings that is 2 2 “based on changed circumstances arising in the country of3 1 nationality or in the country to which deportation has been 2 ordered, if such evidence is material and was not available 3 and could not have been discovered or presented at the 4 previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii). Here, Ye 5 waives any challenge to the BIA’s finding that he failed to 6 satisfy such exception, arguing instead that the BIA failed 7 to adequately consider the evidence he submitted in support 8 of his motion. 9 Contrary to Ye’s argument, there is no indication that 1 0 the BIA ignored any evidence Ye submitted because the BIA 1 1 explicitly referenced all of the materials he submitted with 1 2 his motion. See Xiao Ji Chen v. U.S. Dep’t of Justice , 471 1 3 F.3d 315, 337 n.17 (2d Cir. 2006) (presuming that the agency 1 4 “has taken into account all of the evidence before [it], 1 5 unless the record compellingly suggests otherwise”). 1 6 Moreover, the BIA reasonably declined to credit the 1 7 unauthenticated notice Ye submitted based on the IJ’s 1 8 underlying adverse credibility determination. See Qin Wen 1 9 Zheng v. Gonzales , 500 F.3d 143, 149 (2d Cir. 2007). 2 0 Accordingly, because Ye waives any challenge to the BIA’s 2 1 dispositive finding that he failed to satisfy the exception 2 2 to the time limitation applicable to motions to reopen, and4 1 because the BIA adequately considered his evidence, we find 2 that the BIA did not abuse its discretion in denying his 3 motion to reopen as untimely. See8 C.F.R. § 1003.2(c)(2). 4 We further note that the BIA did not err in finding 5 that, in the alternative, Ye failed to establish his prima 6 facieeligibility for relief. See INS v. Abudu , 485 U.S. 7 94, 104-05 (1988). Contrary to Ye’s argument, the BIA 8 reasonably found that because Ye had practiced Falun Gong 9 exclusively in the United States, his situation differed 1 0 from that of Falun Gong practitioners in China. Because Ye 1 1 submitted no credible evidence discussing the treatment of 1 2 individuals who had practiced Falun Gong in the United 1 3 States, the BIA reasonably found that Ye failed to establish 1 4 his prima facie eligibility for relief, which provided an 1 5 alternative and independent basis for denying his motion to 1 6 reopen. See id . 1 7 For the foregoing reasons, the petition for review is 1 8 DENIED. As we have completed our review, any stay of 1 9 removal that the Court previously granted in this petition 2 0 is VACATED, and any pending motion for a stay of removal in 2 1 this petition is DISMISSED as moot. Any pending request for 2 2 oral argument in this petition is DENIED in accordance with5 1 Federal Rule of Appellate Procedure 34(a)(2), and Second 2 Circuit Local Rule 34.1(b). 3 FOR THE COURT: 4 Catherine O’Hagan Wolfe, Clerk 5 6