Hua en Ye v. Holder

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