13-2344
Ye v. Holder
BIA
A078 511 753
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 7th day of August, two thousand fourteen.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 BARRINGTON D. PARKER,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 CAI HUA YE,
14 Petitioner,
15
16 v. 13-2344
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Gary J. Yerman, Yerman & Associates,
24 LLC New York, NY.
25
26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
27 General, Francis W. Fraser, Senior
28 Litigation Counsel, E. Tayo Otunla,
29 Trial Attorney, United States
30 Department of Justice, Washington,
31 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 Cai Hua Ye, a native and citizen of the
6 People’s Republic of China, seeks review of the May 16, 2013
7 decision of the BIA denying her motion to reopen. In re Cai
8 Hua, No. A078 511 753 (B.I.A. May 16, 2013). We assume the
9 parties’ familiarity with the underlying facts and
10 procedural history in this case.
11 The BIA’s denial of Ye’s motion to reopen as untimely
12 was not an abuse of discretion. See Kaur v. BIA, 413 F.3d
13 232, 233 (2d Cir. 2005) (per curiam). An alien may file one
14 motion to reopen no later than 90 days after the date on
15 which the final administrative decision has been rendered in
16 the proceedings sought to be reopened. 8 U.S.C.
17 § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). There is no
18 dispute that Ye’s 2013 motion was untimely, as the final
19 administrative decision was issued in 2004. However, the
20 time and number limitations do not apply to a motion to
21 reopen if it is “based on changed circumstances arising in
22 the country of nationality or in the country to which
2
1 deportation has been ordered, if such evidence is material
2 and was not available and could not have been discovered or
3 presented at the previous hearing.” 8 C.F.R.
4 § 1003.2(c)(3)(ii); see also 8 U.S.C. § 1229a(c)(7)(C)(ii).
5 Here, the BIA did not abuse its discretion in declining
6 to reopen Ye’s proceedings because it correctly determined
7 that she had not demonstrated prima facie eligibility for
8 relief. INS v. Abudu, 485 U.S. 94, 104 (1988), Kaur, 413
9 F.3d a5 233. The BIA found that Ye’s country conditions
10 evidence showed that while China generally allows the
11 practice of Christianity, Chinese authorities arrested
12 leaders of underground churches and harassed parishioners.
13 Ye did not specify that she would be a church leader, nor
14 that any such harassment would rise to the level of
15 persecution. See Ivanishvili v. U.S. Dep’t of Justice, 433
16 F.3d 332, 341 (2d Cir. 2006). Nor did Ye articulate how the
17 authorities would know she was a practicing Christian. See
18 Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008).
19 Thus, the BIA did not abuse its discretion by denying Ye’s
20 motion to reopen.
21 We have reviewed all of Ye’s arguments and find them to
22 be without merit.
3
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, the pending motion
3 for a stay of removal in this petition is DENIED as moot.
4
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk
7
8
4