11-760-ag

Ye v. Holder

BIA

A078 425 064

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 19th 4 day of December, two thousand eleven.

5

6 PRESENT:

7 BARRINGTON D. PARKER,

8 RICHARD C. WESLEY,

9 RAYMOND J. LOHIER, JR.,

10 Circuit Judges.

11 _________________________________________

12

13 SHUI XIAM YE, AKA SAN MEI HUANG, AKA

14 SHUI XIAN YE,

15 Petitioner, 

16

17 v. 11-760-ag

18 NAC 

19 ERIC H. HOLDER, JR., UNITED STATES 

20 ATTORNEY GENERAL, 

21 Respondent.

22 _________________________________________

23

24 FOR PETITIONER: Ai Tong, New York, New York. 

25

26 FOR RESPONDENT: Tony West, Assistant Attorney

27 General; Mark C. Walters, Senior

28 Litigation Counsel; Lyle D. Jentzer,

29 Attorney, Office of Immigration

30 Litigation, United States Department

31 of Justice, Washington, D.C.
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 Shui Xiam Ye, a native and citizen of the

6 People’s Republic of China, seeks review of the February 15,

7 2011 order of the BIA denying her motion to reopen. In re

8 Shui Xiam Ye, No. A078 425 064 (B.I.A. Feb. 15, 2011). We

9 assume the parties’ familiarity with the underlying facts

10 and procedural history of the case. As an initial matter,

11 because Ye does not challenge the BIA’s denial of her motion

12 based on her claim relating to China’s family planning

13 policy, we do not address it. 

14 The BIA’s denial of Ye’s motion to reopen as untimely

15 and number-barred was not an abuse of discretion. See Kaur

16 v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam). An

17 alien may file one motion to reopen, generally no later than

18 90 days after the date on which the final administrative

19 decision was rendered in the proceedings sought to be

20 reopened. 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R.

21 § 1003.2(c)(2). There is no dispute that Ye’s 2010 motion

22 was untimely and number-barred, as she previously filed two

2
1 motions to reopen, and the final administrative order was

2 issued in 2004. See 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 

3 8 C.F.R. § 1003.2(c)(2). The time limitation does not apply

4 to a motion to reopen if it is “based on changed

5 circumstances arising in the country of nationality or in

6 the country to which deportation has been ordered, if such

7 evidence is material and was not available and could not

8 have been discovered or presented at the previous hearing.” 

9 8 C.F.R. § 1003.2(c)(3)(ii); see also 8 U.S.C.

10 § 1229a(c)(7)(C)(ii). However, Ye failed to establish

11 changed circumstances in China. 

12 Ye argues that she demonstrated an increase in China’s

13 persecution of Falun Gong practitioners since the 2008

14 Olympics, and that she was under heightened scrutiny by

15 Chinese officials since they intercepted a Falun Gong DVD

16 she sent to her father in China. However, the BIA’s

17 determination that the evidence failed to demonstrate

18 changed country circumstances is supported by substantial

19 evidence, as Ye’s evidence did not show that China’s

20 repression of Falun Gong increased since the time of her

21 merits hearing. See Jian Hui Shao v. Mukasey, 546 F.3d 138,

22 169 (2d Cir. 2008). 

3
1 Because the evidence Ye submitted was insufficient to

2 establish a change in country conditions, the BIA did not

3 abuse its discretion in concluding that she failed to meet

4 an exception to the filing deadline, and in denying her

5 untimely motion to reopen. See 8 U.S.C.

6 § 1229a(c)(7)(C)(i), (ii); 8 C.F.R. § 1003.2(c)(2), (3). 

7 For the foregoing reasons, the petition for review is

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

9 removal that the Court previously granted in this petition

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

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

12 oral argument in this petition is DENIED in accordance with

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

14 Circuit Local Rule 34.1(b).

15 FOR THE COURT: 

16 Catherine O’Hagan Wolfe, Clerk

17

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