    13-2841
    Ye v. Holder
                                                                                  BIA
                                                                          A073 170 036
                    UNITED STATES COURT OF APPEALS
                        FOR THE SECOND CIRCUIT
                               SUMMARY ORDER
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         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Thurgood Marshall United
    States Courthouse, 40 Foley Square, in the City of New York,
    on the 2nd day of July, two thousand fourteen.

    PRESENT:
             JON O. NEWMAN,
             RICHARD C. WESLEY,
             GERARD E. LYNCH,
                  Circuit Judges.
    _____________________________________

    DE QUAN YE,
             Petitioner,

                   v.                                      13-2841
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:               Edward J. Cuccia, New York, New
                                  York.

    FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
                                  General; Jennifer L. Lightbody,
                                  Senior Litigation Counsel; Matthew
                                  A. Connelly, Trial Attorney, Office
                                  of Immigration Litigation, United
                                  States Department of Justice,
                                  Washington, D.C.
    UPON DUE CONSIDERATION of this petition for review of a

decision of the Board of Immigration Appeals (“BIA”), it is

hereby ORDERED, ADJUDGED, AND DECREED that the petition for

review is DENIED.

    De Quan Ye, a native and citizen of China, seeks review

of a June 28, 2013, decision of the BIA denying his motion

to reopen.    In re De Quan Ye, No. A073 170 036 (B.I.A. Jun.

28, 2013).    We assume the parties’ familiarity with the

underlying facts and procedural history of this case.

    We review the BIA’s denial of a motion to reopen for

abuse of discretion.    Ali v. Gonzales, 448 F.3d 515, 517 (2d

Cir. 2006).

    As Ye concedes in his brief, his fourth motion to

reopen filed in May 2013 was untimely, number barred, and

did not fall under any statutory exception to the time and

number limitations.    See 8 U.S.C. § 1229a(c)(7)(C)(i).    Ye

argues that, because his 1997 removal proceedings were

improvidently begun after he had already been ordered

excluded, the time and number rules do not apply.    Ye,

however, cites to no authority in support of this

proposition except for general case law regarding the

doctrine of res judicata, which, by itself, is unavailing.

First, 8 U.S.C. § 1252(g) bars judicial review of the
                               2
agency’s determination to “commence proceedings,” thus, to

the extent Ye argues that the 1997 removal proceedings

should not have been commenced, judicial review is not

available.   In any event, Ye raises his res judicata

argument for the first time in his fourth motion to reopen,

without explaining why he did not raise it earlier.     Ye

could have raised that argument as early as 1997, but did

not do so.   The regulations provide that a motion to reopen

must be based on new, previously unavailable evidence.       See

8 C.F.R. § 1003.2(c)(1).   As Ye identifies no basis for

finding that the BIA abused its discretion by denying

reopening and termination of proceedings, his petition for

review is DENIED.



                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk




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