11-234-ag

Ye v. Holder

BIA

A077 341 575

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

New York, on the 5th 4 day of June, two thousand twelve.

5

6 PRESENT:

7 RALPH K. WINTER,

8 REENA RAGGI,

9 SUSAN L. CARNEY,

10 Circuit Judges.

11 _____________________________________

12

13 FA MING YE, AKA FA MING YI, AKA

14 TOM TRI THO TRUONG,

15 Petitioner, 

16

17 v. 11-234-ag

18 NAC 

19 ERIC H. HOLDER, JR., UNITED STATES 

20 ATTORNEY GENERAL, 

21 Respondent.

22 _______________________________________

23

24 FOR PETITIONER: Lee Ratner, Law Offices of 

25 Michael Brown, New York, 

26 New York.

27

28 FOR RESPONDENT: Tony West, Assistant Attorney

29 General; Anthony P. Nicastro, Senior

30 Litigation Counsel; S. Nicole

31 Nardone, Trial Attorney, Office of

32 Immigration Litigation, United

33 States Department of Justice,

34 Washington, D.C.
2

1 UPON DUE CONSIDERATION of this petition for review of a

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

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

4 is DENIED.

5 Petitioner Fa Ming Ye, a native and citizen of the

6 People’s Republic of China, seeks review of a December 29,

7 2010 decision of the BIA denying his motion to reopen his

8 removal proceedings. In re Fa Ming Ye, No. A077 341 575

9 (B.I.A. Dec. 29, 2010). We assume the parties’ familiarity

10 with the underlying facts and procedural history in this

11 case.

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

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

14 (2d Cir. 2006). An alien seeking to reopen proceedings is

15 required to file a motion to reopen no later than 90 days

16 after the date on which the final administrative decision

17 was rendered, and is permitted to file only one such motion. 

18 See 8 U.S.C. § 1229a(c)(7)(A), (C). There is no dispute

19 that Ye’s third motion to reopen, filed more than seven

20 years after the BIA affirmed the immigration judge’s (“IJ”)

21 denial of his asylum application, was untimely and number22 barred. Accordingly, the BIA did not abuse its discretion
3

1 in denying Ye’s motion to reopen as untimely. See Ali, 448

2 F.3d at 517.

3 Ye contends, however, that his continued practice of

4 Falun Gong in the United States constitutes changed

5 circumstances, excusing him from the time and number limits. 

6 See 8 U.S.C. § 1229a(c)(7)(C)(ii). As the BIA noted,

7 however, Ye’s Falun Gong activities, which he did not

8 commence until well after he was ordered removed, reflect a

9 self-induced change in personal circumstances, not a change

10 of country conditions in China, and therefore, do not exempt

11 his motion from the time limitation. See Wei Guang Wang v.

12 BIA, 437 F.3d 270, 273-74 (2d Cir. 2006); see also Yuen Jin

13 v. Mukasey, 538 F.3d 143, 155 (2d Cir. 2008). 

14 Although Ye argues that the BIA ignored newspaper

15 articles indicating that Falun Gong practitioners may face

16 punishment for acts committed outside of China, the record

17 does not compellingly suggest that the BIA failed to

18 consider any evidence. See Jian Hui Shao v. Mukasey, 546

19 F.3d 138, 169 (2d Cir. 2008). Indeed, the BIA explicitly

20 noted that the “evidence reflects that Chinese citizens who

21 practice Falun Gong or participate in demonstrations in the

22 United States may be detained or subject to re-education.” 
4

1 Furthermore, the BIA did not err by ascribing minimal

2 persuasive weight to Ye’s unauthenticated arrest notice,

3 since the notice lacked any indicia of authenticity. See

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

5 Last, Ye’s argument that the BIA erred in finding no

6 change in country conditions, despite acknowledging the

7 treatment of Falun Gong practitioners detailed in the U.S.

8 Department of State’s 2007 Profile of Asylum Claims and

9 Country Conditions for China, is without merit. The mere

10 fact that the BIA recognized “that Chinese citizens who

11 practice Falun Gong or participate in demonstrations in the

12 United States may be detained or subject to re-education”

13 does not establish a material change in country conditions

14 sufficient to excuse an untimely motion to reopen, given

15 that the report addressed continuing repression of Falun

16 Gong practitioners since 1999, and given the BIA’s

17 determination that Ye’s continued practice of Falun Gong

18 reflected a self-induced change in personal circumstances,

19 see Wei Guang Wang, 437 F.3d at 273-74.

20 For the foregoing reasons, the petition for review is

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

22 removal that the Court previously granted in this petition
5

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

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

3 oral argument in this petition is DENIED in accordance with

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

5 Circuit Local Rule 34.1(b).

6 FOR THE COURT: 

7 Catherine O’Hagan Wolfe, Clerk

8

9