11-760-ag Ye v. Holder BIA A078 425 064 

### 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 J** **ANUARY 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 19 th** **day of December, two thousand eleven.** 4 5 **PRESENT:** 6 **BARRINGTON D. PARKER,** 7 **RICHARD C. WESLEY,** 8 **RAYMOND J. LOHIER, JR.,** 9 Circuit Judges **.** 10

**_________________________________________** 11 12 **SHUI XIAM YE, AKA SAN MEI HUANG, AKA** 13 **SHUI XIAN YE,** 14 Petitioner**,** 15 16 **v. 11-760-ag** 17 **NAC** 18 **ERIC H. HOLDER, JR., UNITED STATES** 19 **ATTORNEY GENERAL,** 20 Respondent **.** 21

**_________________________________________** 22 23 **FOR PETITIONER: Ai Tong, New York, New York.** 24 25 **FOR RESPONDENT: Tony West, Assistant Attorney** 26 **General; Mark C. Walters, Senior** 27 **Litigation Counsel; Lyle D. Jentzer,** 28 **Attorney, Office of Immigration** 29 **Litigation, United States Department** 30 **of Justice, Washington, D.C.** 31UPON 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 Shui Xiam Ye, a native and citizen of the 5 People’s Republic of China, seeks review of the February 15, 6 2011 order of the BIA denying her motion to reopen. In re 7 Shui Xiam Ye , No. A078 425 064 (B.I.A. Feb. 15, 2011). We 8 assume the parties’ familiarity with the underlying facts 9 and procedural history of the case. As an initial matter, 10 because Ye does not challenge the BIA’s denial of her motion 11 based on her claim relating to China’s family planning 12 policy, we do not address it. 13 The BIA’s denial of Ye’s motion to reopen as untimely 14 and number-barred was not an abuse of discretion. See Kaur 15

v. BIA , 413 F.3d 232, 233 (2d Cir. 2005) (per curiam). An 16 alien may file one motion to reopen, generally no later than 17 90 days after the date on which the final administrative 18 decision was rendered in the proceedings sought to be 19 reopened. 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R. 20 § 1003.2(c)(2). There is no dispute that Ye’s 2010 motion 21 was untimely and number-barred, as she previously filed two 22

2motions to reopen, and the final administrative order was 1 issued in 2004. See 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 2 8 C.F.R. § 1003.2(c)(2). The time limitation does not apply 3 to a motion to reopen if it is “based on changed 4 circumstances arising in the country of nationality or in 5 the country to which deportation has been ordered, if such 6 evidence is material and was not available and could not 7 have been discovered or presented at the previous hearing.” 8 8 C.F.R. § 1003.2(c)(3)(ii); see also8 U.S.C. 9 § 1229a(c)(7)(C)(ii). However, Ye failed to establish 10 changed circumstances in China. 11 Ye argues that she demonstrated an increase in China’s 12 persecution of Falun Gong practitioners since the 2008 13 Olympics, and that she was under heightened scrutiny by 14 Chinese officials since they intercepted a Falun Gong DVD 15 she sent to her father in China. However, the BIA’s 16 determination that the evidence failed to demonstrate 17 changed country circumstances is supported by substantial 18 evidence, as Ye’s evidence did not show that China’s 19 repression of Falun Gong increased since the time of her 20 merits hearing. See Jian Hui Shao v. Mukasey,546 F.3d 138, 21 169 (2d Cir. 2008). 22

3Because the evidence Ye submitted was insufficient to 1 establish a change in country conditions, the BIA did not 2 abuse its discretion in concluding that she failed to meet 3 an exception to the filing deadline, and in denying her 4 untimely motion to reopen. See8 U.S.C. 5 § 1229a(c)(7)(C)(i), (ii); 8 C.F.R. § 1003.2(c)(2), (3). 6 For the foregoing reasons, the petition for review is 7 DENIED. As we have completed our review, any stay of 8 removal that the Court previously granted in this petition 9 is VACATED, and any pending motion for a stay of removal in 10 this petition is DISMISSED as moot. Any pending request for 11 oral argument in this petition is DENIED in accordance with 12 Federal Rule of Appellate Procedure 34(a)(2), and Second 13 Circuit Local Rule 34.1(b). 14

FOR THE COURT: 15 Catherine O’Hagan Wolfe, Clerk 16 17

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