19

- 1574 Ye v. Garland BIA A 077 353 715


### 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**  **ELECTR ONIC DATABASE (WITH THE NOTATION**  **“ SUMMARY ORDER**  **” ). A PARTY CITING TO 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 Thurgood Mar**  **shall** 2 **United States Courthouse, 40 Foley Square, in the City of**  3 **New York, on the 2**  **8 t**  **h da**  **y of M**  **a y**  **, two thousand twenty** 

**- one** 

**.** 4 5 **PRESENT:** 6 **RAYMOND J. LOHIER, JR. ,**  7 **RICHARD J. SULLIVAN ,**  8 **STEVEN J. MENASHI ,**  9 **Circuit Judges.** 10

**_____________________________________** 11 12 **CHANG JU YE ,**  13 **Petitioner ,**  14 15

**v. 1**  **9**

**- 1574**  16 **NAC** 17 **MERRICK B. GARLAND ,**  **UNITED** 18 **STATES ATTORNEY GENERAL**  **,** 19 **Respondent**

**.** 20

**_____________________________________** 21 22 **FOR PETITIONER :**  John Chang , New York, NY 23 24 **FOR RESPONDENT:** Bryan Boynton , Acting Assistant 25 Attorney General; Carl McIntyre , 26 Assistant Director ; Aliza B. 27 Alyeshmerni , Trial Attorney , 28 Office of Immigration Litigation , 29 United States Department of 30 Justice, Washington, DC 312 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 petitio n for review 3

is DENIED. 4

Petitioner Chan g Ju Ye , a native and citizen of the 5

People’s Republic of China , seeks review of a May 6, 2019 6

decision of the BIA , denying his third motion to reopen his 7

removal proceedings

. In re Chang Ju Ye , No. A 077 353 715 8

(B.I.A. May 6, 2019 ). We assume the parties’ familiarity 9

with the underlying facts and procedural history. 10

We review the BIA’s decision to deny Ye’s third motion 11

to reopen for abuse of discretion. See Jian Hui Shao v. 12

Mukasey , 546 F.3d 138, 16 8

- 6 9 (2d Cir. 2008). In his motion 13

to reopen, Ye asserted that conditions for Christians had 14

worsened in China, which excused the untimely and number

15

barred filing of his motion and demonstrated his prima facie 16

eligibility for asylum based on his practice of Christianity 17

in the United States

. 18

It is undisputed that Ye’s 2018 motion was time and 19

number

- barred because it was his third motion to reopen filed 20

more than 14 years after his removal order became final in 213 2003. See 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. 1

§ 1003.2(c)(2). These time and number limits , however, do 2

not apply to a motion to reopen that “is based on changed 3

country conditions arising in the country of nationality or 4

the country to which removal has been ordered, if such 5

evidence is material and was not available and would not have 6

been discovered or presented at the previous proceeding

. ” 7

8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)

. 8

Nevertheless, the BIA did not err here in finding that Ye 9

failed to establish a material change in conditions in China. 10

“In determining whether evidence accompanying a motion 11

to reopen demonstr ates a material change in country 12

conditions that would justify reopening, [the BIA] compare[s] 13

the evidence of country conditions submitted with the motion 14

to those that existed at the time of the merits hearing 15

below.” In re S

- Y

- G

- , 24 I. & N. Dec. 247, 253 (B.I.A. 2007). 16

As the BIA found, the evidence demonstrates that the Chinese 17

government has continuously repressed and mistreated 18

unregistered Christian groups since before Ye’s 2002 hearing. 19

See id. at 257 ( “ C hange that is incremental or incidental 20

does not meet the regulatory requirements for late 214 motions.” )

. 1

Accordingly, because the BIA reasonably concluded that 2

Ye failed to demonstrate a material change in conditions in 3

China, it did not abuse its discretion in denying his motion 4

as untimely and number

- barred

. See 8 U.S.C. 5

§ 1229a(c)(7) (A), ( C). Because the denial as untimely and 6

number

- barred is dispositive, we do not reach the BIA’s 7

alternative basis for denying Ye ’s motion , i.e., his failure 8

to establish h is prima facie eligibility for relief. See INS 9

v. Bagamasbad , 429 U.S. 24, 25 (1976) (“As a general rule 10

courts and agencies are not requi red to make findings on 11

issues the decision of which is unnecessary to the results 12

they reach.”). 13

For the foregoing reasons, the petition for review is 14

DENIED. All pending motions and applications are DENIED and 15

stays VACATED. 16

FOR THE COURT: 17 Catherine O ’ Hagan Wolfe , 18 Clerk of Court 19