11-234-ag
Ye v. Holder
BIA
A077 341 575
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 5th day of June, two thousand twelve.
5
6 PRESENT:
7 RALPH K. WINTER,
8 REENA RAGGI,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 FA MING YE, AKA FA MING YI, AKA
14 TOM TRI THO TRUONG,
15 Petitioner,
16
17 v. 11-234-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONER: Lee Ratner, Law Offices of
25 Michael Brown, New York,
26 New York.
27
28 FOR RESPONDENT: Tony West, Assistant Attorney
29 General; Anthony P. Nicastro, Senior
30 Litigation Counsel; S. Nicole
31 Nardone, Trial Attorney, Office of
32 Immigration Litigation, United
33 States Department of Justice,
34 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 Fa Ming Ye, a native and citizen of the
6 People’s Republic of China, seeks review of a December 29,
7 2010 decision of the BIA denying his motion to reopen his
8 removal proceedings. In re Fa Ming Ye, No. A077 341 575
9 (B.I.A. Dec. 29, 2010). We assume the parties’ familiarity
10 with the underlying facts and procedural history in this
11 case.
12 We review the BIA’s denial of a motion to reopen for
13 abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517
14 (2d Cir. 2006). An alien seeking to reopen proceedings is
15 required to file a motion to reopen no later than 90 days
16 after the date on which the final administrative decision
17 was rendered, and is permitted to file only one such motion.
18 See 8 U.S.C. § 1229a(c)(7)(A), (C). There is no dispute
19 that Ye’s third motion to reopen, filed more than seven
20 years after the BIA affirmed the immigration judge’s (“IJ”)
21 denial of his asylum application, was untimely and number-
22 barred. Accordingly, the BIA did not abuse its discretion
2
1 in denying Ye’s motion to reopen as untimely. See Ali, 448
2 F.3d at 517.
3 Ye contends, however, that his continued practice of
4 Falun Gong in the United States constitutes changed
5 circumstances, excusing him from the time and number limits.
6 See 8 U.S.C. § 1229a(c)(7)(C)(ii). As the BIA noted,
7 however, Ye’s Falun Gong activities, which he did not
8 commence until well after he was ordered removed, reflect a
9 self-induced change in personal circumstances, not a change
10 of country conditions in China, and therefore, do not exempt
11 his motion from the time limitation. See Wei Guang Wang v.
12 BIA, 437 F.3d 270, 273-74 (2d Cir. 2006); see also Yuen Jin
13 v. Mukasey, 538 F.3d 143, 155 (2d Cir. 2008).
14 Although Ye argues that the BIA ignored newspaper
15 articles indicating that Falun Gong practitioners may face
16 punishment for acts committed outside of China, the record
17 does not compellingly suggest that the BIA failed to
18 consider any evidence. See Jian Hui Shao v. Mukasey, 546
19 F.3d 138, 169 (2d Cir. 2008). Indeed, the BIA explicitly
20 noted that the “evidence reflects that Chinese citizens who
21 practice Falun Gong or participate in demonstrations in the
22 United States may be detained or subject to re-education.”
3
1 Furthermore, the BIA did not err by ascribing minimal
2 persuasive weight to Ye’s unauthenticated arrest notice,
3 since the notice lacked any indicia of authenticity. See
4 Qin Wen Zheng v. Gonzales, 500 F.3d 143, 149 (2d Cir. 2007).
5 Last, Ye’s argument that the BIA erred in finding no
6 change in country conditions, despite acknowledging the
7 treatment of Falun Gong practitioners detailed in the U.S.
8 Department of State’s 2007 Profile of Asylum Claims and
9 Country Conditions for China, is without merit. The mere
10 fact that the BIA recognized “that Chinese citizens who
11 practice Falun Gong or participate in demonstrations in the
12 United States may be detained or subject to re-education”
13 does not establish a material change in country conditions
14 sufficient to excuse an untimely motion to reopen, given
15 that the report addressed continuing repression of Falun
16 Gong practitioners since 1999, and given the BIA’s
17 determination that Ye’s continued practice of Falun Gong
18 reflected a self-induced change in personal circumstances,
19 see Wei Guang Wang, 437 F.3d at 273-74.
20 For the foregoing reasons, the petition for review is
21 DENIED. As we have completed our review, any stay of
22 removal that the Court previously granted in this petition
4
1 is VACATED, and any pending motion for a stay of removal in
2 this petition is DISMISSED as moot. Any pending request for
3 oral argument in this petition is DENIED in accordance with
4 Federal Rule of Appellate Procedure 34(a)(2), and Second
5 Circuit Local Rule 34.1(b).
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
8
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