13

‐ 2637

Li v. Holder

BIA

A095 850 517



### 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.

At a stated term of the United States Court of Appeals for the Second

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square,

in the City of New York, on the 2 nd day of April, two thousand fourteen.

PRESENT:

ROBERT A. KATZMANN,

Chief Judge,

RICHARD C. WESLEY,

DENNY CHIN,

Circuit Judges

.

_____________________________________

YA QIN LI,

Petitioner

,

v. 13

‐ 2637

NAC

ERIC H. HOLDER, JR., UNITED STATES

ATTORNEY GENERAL,

Respondent

.

_____________________________________FOR PETITIONER: Thomas D. Barra, New York, NY.

FOR RESPONDENT: Stuart F. Delery, Assistant Attorney General;

Edward J. Duffy, Senior Litigation Counsel; Paul

Fiorino, Senior Litigation Counsel, Office of

Immigration Litigation, United States Department

of Justice, Washington, D.C.

UPON DUE CONSIDERATION of this petition for review of a Board of

Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED,

AND DECREED that the petition for review is DENIED.

Petitioner Ya Qin Li, a native and citizen of the People’s Republic of China,

seeks review of the June 12, 2013, decision of the BIA denying her motion to

reopen, In re Ya Qin LI

, No. A095 850 517 (B.I.A. June 12, 2013). We assume the

parties’ familiarity with the underlying facts and procedural history in this case.

The BIA’s denial of Li’s motion to reopen as untimely and number

‐ barred

was not an abuse of discretion. See Kaur v. B.I.A.

, 413 F.3d 232, 233 (2d Cir. 2005)

(per curiam). An alien may file one motion to reopen no later than 90 days after

the date on which the final administrative decision has been rendered in the

proceedings sought to be reopened. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.

§ 1003.2(c)(2). There is no dispute that Li’s 2013 motion was untimely and

number

‐ barred, as it was her second motion to reopen, and the final

2administrative decision was issued in 2004. However, the time and number

limitations do not apply to a motion to reopen if it is “based on changed

circumstances arising in the country of nationality or in the country to which

deportation has been ordered, if such evidence is material and was not available

and could not have been discovered or presented at the previous hearing.” 8

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

Substantial evidence supports the BIA’s determination that Li failed to

demonstrate changed country conditions in China. See Shao v. Mukasey

, 546 F.3d

138, 169 (2d Cir. 2008). “In determining whether evidence accompanying a

motion to reopen demonstrates a material change in country conditions that

would justify reopening, [the BIA] compare[s] the evidence of country conditions

submitted with the motion to those that existed at the time of the merits hearing

below.” Matter of S

‐ Y

‐ G

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

The BIA may also deny a motion to reopen when the movant has not

established her prima facie eligibility for the underlying relief sought. See I.N.S. v.

Abudu

, 485 U.S. 94, 104

‐ 05 (1988). The BIA did not abuse its discretion in

concluding that Li failed to establish an objectively reasonable fear of future

3persecution based on her practice of Falun Gong because she did not show that

anyone in China was aware of that practice. See Y.C. v. Holder

, 741 F.3d 324, 333

‐

34 (2d Cir. 2013); Hongsheng Leng v. Mukasey

, 528 F.3d 135, 138 (2d Cir. 2008).

For the foregoing reasons, the petition for review is DENIED. As we have

completed our review, any stay of removal that the Court previously granted in

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

petition is DISMISSED as moot. Any pending request for oral argument in this

petition is DENIED in accordance with Federal Rule of Appellate Procedure

34(a)(2), and Second Circuit Local Rule 34.1(b).

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk

4