10-110-ag

Ye v. Holder

BIA

A077 993 844

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 24 day of November, two thousand ten. th

5

6 PRESENT:

7 ROGER J. MINER,

8 JOSEPH M. McLAUGHLIN,

9 ROBERT A. KATZMANN,

10 Circuit 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

10 underlying facts and procedural history of this case.

11 We review the BIA’s denial of a motion to reopen for

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

13 Cir. 2006). We review the BIA’s evaluation of country

14 conditions evidence submitted with a motion to reopen under

15 the substantial evidence standard. Jian Hui Shao v.

16 Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).

17 It is beyond dispute that Ye’s motion to reopen was

18 untimely, as it was filed almost five years after the

19 agency’s order of removal became final. See 8 C.F.R.

20 § 1003.2(c)(2). However, this time limitation does not

21 apply to a motion to reopen asylum proceedings that is

22 “based on changed circumstances arising in the country of
3

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

10 the BIA ignored any evidence Ye submitted because the BIA

11 explicitly referenced all of the materials he submitted with

12 his motion. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471

13 F.3d 315, 337 n.17 (2d Cir. 2006) (presuming that the agency

14 “has taken into account all of the evidence before [it],

15 unless the record compellingly suggests otherwise”). 

16 Moreover, the BIA reasonably declined to credit the

17 unauthenticated notice Ye submitted based on the IJ’s

18 underlying adverse credibility determination. See Qin Wen

19 Zheng v. Gonzales, 500 F.3d 143, 149 (2d Cir. 2007). 

20 Accordingly, because Ye waives any challenge to the BIA’s

21 dispositive finding that he failed to satisfy the exception

22 to the time limitation applicable to motions to reopen, and
4

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. See 8 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 facie eligibility 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

10 from that of Falun Gong practitioners in China. Because Ye

11 submitted no credible evidence discussing the treatment of

12 individuals who had practiced Falun Gong in the United

13 States, the BIA reasonably found that Ye failed to establish

14 his prima facie eligibility for relief, which provided an

15 alternative and independent basis for denying his motion to

16 reopen. See id.

17 For the foregoing reasons, the petition for review is

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

19 removal that the Court previously granted in this petition

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

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

22 oral argument in this petition is DENIED in accordance with
5

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