Filed: Oct. 02, 2014
Latest Update: Mar. 02, 2020
Summary: 13-1215 Ye v. Holder BIA A077 322 933 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
Summary: 13-1215 Ye v. Holder BIA A077 322 933 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 ..
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13-1215
Ye v. Holder
BIA
A077 322 933
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 2nd day of October, two thousand fourteen.
5
6 PRESENT:
7 DEBRA ANN LIVINGSTON,
8 DENNY CHIN,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 Hua En Ye,
14 Petitioner,
15
16 v. 13-1215
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: Stuart F. Delery, Assistant Attorney
26 General; Jennifer L. Lightbody,
27 Senior Litigation Counsel; Edward E.
28 Wiggers, Trial Attorney, Office of
29 Immigration Litigation, Civil
30 Division, United States Department
31 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
4 review is DENIED in part and DISMISSED in part.
5 Petitioner Hua En Ye, a native and citizen of China,
6 seeks review of a March 12, 2013, decision of the BIA
7 denying his motion to reopen. In re Hua En Ye, No. A077 322
8 933 (B.I.A. Mar. 12, 2013). We assume the parties’
9 familiarity with the underlying facts and procedural history
10 of this case.
11 We review the BIA’s denial of a motion to reopen for
12 abuse of discretion, mindful of the Supreme Court’s
13 admonition that such motions are “disfavored.” Ali v.
14 Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (citing INS v.
15 Doherty,
502 U.S. 314, 322-23 (1992)). We review the BIA’s
16 factual findings regarding country conditions under the
17 substantial evidence standard. See Jian Hui Shao v.
18 Mukasey,
546 F.3d 138, 169 (2d Cir. 2008).
19 The BIA did not abuse its discretion in denying Ye’s
20 motion to reopen as untimely as it was filed more than seven
21 years after his final order of removal. See 8 U.S.C.
22 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). Although
2
1 there are no time limitations for filing a motion to reopen
2 if it is “based on changed country conditions arising in the
3 country of nationality or the country to which removal has
4 been ordered, if such evidence is material and was not
5 available and would not have been discovered or presented at
6 the previous proceeding,” 8 U.S.C. § 1229a(c)(7)(C)(ii); see
7 also 8 C.F.R. § 1003.2(c)(3)(ii), Ye has not established any
8 error in the BIA’s conclusion that there was no material
9 change.
10 First, Ye’s conversion to Christianity is a change in
11 personal circumstances that does not excuse the time
12 limitation. See Li Yong Zheng v. U.S. Dep’t of Justice, 416
13 F.3d 129, 130-31 (2d Cir. 2005); see also Wei Guang Wang v.
14 BIA,
437 F.3d 270, 274 (2d Cir. 2006). Moreover, there is
15 no basis for finding that the BIA ignored evidence of
16 country conditions, as the BIA explicitly discussed the
17 evidence and reasonably concluded that it did not establish
18 a change since the time of the hearing because the reports
19 did not describe conditions at the time of Ye’s 2002 hearing
20 and, to the extent that it demonstrated any change from
21 previous years, it showed a continuation of religious
22 repression, not new conditions. See Xiao Ji Chen v. U.S.
23 Dep’t of Justice,
471 F.3d 315, 336 n.17 (2d Cir. 2006)
3
1 (presuming that the agency “has taken into account all of
2 the evidence before [it], unless the record compellingly
3 suggests otherwise”); Matter of S-Y-G-, 24 I. & N. Dec. 247,
4 253 (BIA 2007)(“In determining whether evidence accompanying
5 a motion to reopen demonstrates a material change in country
6 conditions that would justify reopening, [the BIA]
7 compare[s] the evidence of country conditions submitted with
8 the motion to those that existed at the time of the merits
9 hearing below.”).
10 Insofar as Ye challenges the agency’s decision not to
11 reopen his case sua sponte, this decision is an entirely
12 discretionary one by the BIA, and we lack jurisdiction to
13 consider it. See Ali, 448 F.3d at 518. Ye also argues for
14 the first time in his brief in this Court that he is
15 entitled to file a successive asylum application; however,
16 because Ye failed to raise this claim before the BIA, the
17 claim is unexhausted and we lack jurisdiction to consider
18 it. See Mei Fun Wong v. Holder,
633 F.3d 64, 65 (2d Cir.
19 2011).
20 For the foregoing reasons, the petition for review is
21 DENIED in part and DISMISSED in part. As we have completed
22 our review, any stay of removal that the Court previously
4
1 granted in this petition is VACATED, and any pending motion
2 for a stay of removal in this petition is DENIED as moot.
3 Any pending request for oral argument in this petition is
4 DENIED in accordance with Federal Rule of Appellate
5 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
8
9
5
