12-4439
    Ye v. Holder
                                                                                  BIA
                                                                          A094 789 122
                    UNITED STATES COURT OF APPEALS
                        FOR THE SECOND CIRCUIT

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         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 12th day of March, two thousand fourteen.

    PRESENT:
             ROBERT A. KATZMANN,
                  Chief Judge,
             DEBRA ANN LIVINGSTON,
             RAYMOND J. LOHIER, JR.,
                  Circuit Judges.
    _____________________________________

    RONG YE, AKA YE RONG,
             Petitioner,

                   v.                                      12-4439
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:               Lee Ratner, Law Offices of Michael
                                  Brown, New York, New York.

    FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
                                  Attorney General; M. Jocelyn Lopez
                                  Wright, Senior Litigation Counsel;
                                  Anthony J. Messuri, Trial Attorney,
                                  Office of Immigration Litigation,
                                  United States Department of Justice,
                                  Washington, D.C.
    UPON DUE CONSIDERATION of this petition for review of a

decision of the Board of Immigration Appeals (“BIA”), it is

hereby ORDERED, ADJUDGED, AND DECREED that the petition for

review is DENIED.

    Rong Ye, a native and citizen of the People’s Republic

of China, seeks review of an October 19, 2012, decision of

the BIA denying his motion to reconsider and reopen.        In re

Rong Ye, No. A094 789 122 (B.I.A. Oct. 19, 2012).       We assume

the parties’ familiarity with the underlying facts and

procedural history of this case.

    The applicable standards of review are well-

established.   See Jian Hui Shao v. Mukasey, 

,

168-69, 173 (2d Cir. 2008).     As an initial matter, although,

contrary to the government’s argument, Ye exhausted his

argument that the BIA erred in the scope of its prior

decision, he did so on remand and not in his motion to

reconsider; therefore, the issue is not properly before us.

See Ke Zhen Zhao v. U.S. Dep’t of Justice, 

, 89-

90 (2d Cir. 2001) (providing that when an alien files a

timely petition for review from the denial of a motion, the

Court may review only the denial of that motion and not the

underlying agency decisions).       Ye does not otherwise

challenge the BIA’s denial of his motion to reconsider.

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    The BIA did not abuse its discretion in denying Ye’s

motion to reopen.   An alien’s “ability to secure reopening

depends on a demonstration of prima facie eligibility for

[relief], which means []he must show a realistic chance that

the proffered new evidence would likely alter the result in

h[is] case.”    Jian Hui Shao v. Mukasey, 

, 168

(2d Cir. 2008) (citations and internal quotation marks

omitted); see also INS v. Abudu, 

, 104-05 (1988).

    The BIA did not err in finding that Ye failed to

establish his prima facie eligibility for relief based on

his practice of Falun Gong because he did not submit any

credible evidence showing that the Chinese government was,

or would likely become, aware of his purported practice of

Falun Gong.    See Hongsheng Leng v. Mukasey, 

,

143 (2d Cir. 2008); see also Jian Hui 

.

Accordingly, the BIA did not abuse its discretion in denying

Ye’s motion to reopen.    See Jian Hui 

;

see also 

.

    For the foregoing reasons, the petition for review is

DENIED.   As we have completed our review, the pending motion

for a stay of removal in this petition is DENIED as moot.

                             FOR THE COURT:
                             Catherine O’Hagan Wolfe, Clerk




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