11-234-ag Ye v. Holder BIA A077 341 575 

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

## SUMMARY ORDER

**RULINGS BY SU MMARY 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. At a stated term of the United States Court of Appeals**  1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 5 th** **day of June, two thousand twelve.** 4 5 **PRESENT:** 6 **RALPH K. WINTER,** 7 **REENA RAGGI,** 8 **SUSAN L. CARNEY,** 9 Circuit Judges**.** 10

**_____________________________________** 11 12 **FA MING YE, AKA FA MING YI, AKA** 13 **TOM TRI THO TRUONG,** 14 Petitioner**,** 15 16 **v. 11-234-ag** 17 **NAC** 18 **ERIC H. HOLDER, JR., UNITED STATES** 19 **ATTORNEY GENERAL,** 20 Respondent**.** 21

**_______________________________________** 22 23 **FOR PETITIONER: Lee Ratner, Law Offices of** 24 **Michael Brown, New York,** 25 **New York.** 26 27 **FOR RESPONDENT: Tony West, Assistant Attorney** 28 **General; Anthony P. Nicastro, Senior** 29 **Litigation Counsel; S. Nicole** 30 **Nardone, Trial Attorney, Office of** 31 **Immigration Litigation, United** 32 **States Department of Justice,** 33 **Washington, D.C.** 342 UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review 3 is DENIED. 4 Petitioner Fa Ming Ye, a native and citizen of the 5 People’s Republic of China, seeks review of a December 29, 6 2010 decision of the BIA denying his motion to reopen his 7 removal proceedings. In re Fa Ming Ye , No. A077 341 575 8 (B.I.A. Dec. 29, 2010). We assume the parties’ familiarity 9 with the underlying facts and procedural history in this 10

case. 11 We review the BIA’s denial of a motion to reopen for 12 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517 13 (2d Cir. 2006). An alien seeking to reopen proceedings is 14 required to file a motion to reopen no later than 90 days 15 after the date on which the final administrative decision 16 was rendered, and is permitted to file only one such motion. 17
See8 U.S.C. § 1229a(c)(7)(A), (C). There is no dispute 18 that Ye’s third motion to reopen, filed more than seven 19 years after the BIA affirmed the immigration judge’s (“IJ”) 20 denial of his asylum application, was untimely and number21 barred. Accordingly, the BIA did not abuse its discretion 223 in denying Ye’s motion to reopen as untimely. See Ali , 448 1 F.3d at 517. 2 Ye contends, however, that his continued practice of 3 Falun Gong in the United States constitutes changed 4 circumstances, excusing him from the time and number limits. 5
See 8 U.S.C. § 1229a(c)(7)(C)(ii). As the BIA noted, 6 however, Ye’s Falun Gong activities, which he did not 7 commence until well after he was ordered removed, reflect a 8 self-induced change in personal circumstances, not a change 9 of country conditions in China, and therefore, do not exempt 10 his motion from the time limitation. See Wei Guang Wang v. 11

BIA, 437 F.3d 270, 273-74 (2d Cir. 2006); see also Yuen Jin 12 v. Mukasey, 538 F.3d 143, 155 (2d Cir. 2008). 13 Although Ye argues that the BIA ignored newspaper 14 articles indicating that Falun Gong practitioners may face 15 punishment for acts committed outside of China, the record 16 does not compellingly suggest that the BIA failed to 17 consider any evidence. See Jian Hui Shao v. Mukasey,546 18 F.3d 138, 169 (2d Cir. 2008). Indeed, the BIA explicitly 19 noted that the “evidence reflects that Chinese citizens who 20 practice Falun Gong or participate in demonstrations in the 21 United States may be detained or subject to re-education.” 224 Furthermore, the BIA did not err by ascribing minimal 1 persuasive weight to Ye’s unauthenticated arrest notice, 2 since the notice lacked any indicia of authenticity. See 3 Qin Wen Zheng v. Gonzales , 500 F.3d 143, 149 (2d Cir. 2007). 4 Last, Ye’s argument that the BIA erred in finding no 5 change in country conditions, despite acknowledging the 6 treatment of Falun Gong practitioners detailed in the U.S. 7 Department of State’s 2007 Profile of Asylum Claims and 8 Country Conditions for China, is without merit. The mere 9 fact that the BIA recognized “that Chinese citizens who 10 practice Falun Gong or participate in demonstrations in the 11 United States may be detained or subject to re-education” 12 does not establish a material change in country conditions 13 sufficient to excuse an untimely motion to reopen, given 14 that the report addressed continuing repression of Falun 15 Gong practitioners since 1999, and given the BIA’s 16 determination that Ye’s continued practice of Falun Gong 17 reflected a self-induced change in personal circumstances, 18 see Wei Guang Wang, 437 F.3d at 273-74. 19 For the foregoing reasons, the petition for review is 20 DENIED. As we have completed our review, any stay of 21 removal that the Court previously granted in this petition 225 is VACATED, and any pending motion for a stay of removal in 1 this petition is DISMISSED as moot. Any pending request for 2 oral argument in this petition is DENIED in accordance with 3 Federal Rule of Appellate Procedure 34(a)(2), and Second 4 Circuit Local Rule 34.1(b). 5
FOR THE COURT: 6 Catherine O’Hagan Wolfe, Clerk 7 8 9