Shui Xiam Ye v. Holder

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 4 New York, on the 19th 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 4