                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-3-2008

Ye v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3161




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                                                                   NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 07-3161
                                       ___________

                                      YI LANG YE,
                                                              Petitioner

                                             v.

                  ATTORNEY GENERAL OF THE UNITED STATES

                       ____________________________________

                       On Petition for Review of an Order of the
                             Board of Immigration Appeals
                               (Agency No. A78 408 327)
                  Immigration Judge: Honorable Charles M. Honeyman
                     ____________________________________

                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     June 25, 2008

              BEFORE: BARRY, SMITH and HARDIMAN, Circuit Judges

                                Opinion filed: July 3, 2008
                                      ___________

                                        OPINION
                                       ___________

PER CURIAM

       Yi Lang Ye has filed a petition for review of an order of the Board of Immigration

Appeals (“BIA”) denying her motion to reopen her removal proceedings. For the reasons

that follow, we will deny the petition for review.
       Ye is a native and citizen of the People’s Republic of China, from Fujian Province.

She entered the United States in September 2000 and was charged under 8 U.S.C.

§ 1182(a)(7)(A)(i)(I) as an immigrant not in possession of any valid entry documents. Ye

conceded removability and applied for asylum, withholding of removal, and relief under

the Convention Against Torture. Ye claimed that she and her mother had been victims of

retaliation by their village chief as a consequence of their refusal to support him in a local

election. On June 18, 2002, after a hearing, the Immigration Judge (“IJ”) found Ye not

credible, denied all forms of relief, and ordered her removal from the United States to

China. On August 23, 2003, the BIA affirmed without opinion. More than three years

later, on January 23, 2007, Ye filed a motion to reopen her removal proceedings based on

her fear of persecution in China in light of her having married in 2004 and having two

children born in the United States.1 On June 21, 2007, the BIA denied the motion to

reopen as untimely. This petition for review followed.

       We have jurisdiction to review the BIA’s denial of Ye’s motion to reopen. See

8 U.S.C. § 1252. We review the denial of a motion to reopen for abuse of discretion. See

Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002). Thus, to succeed on her petition

for review, Ye must show that the BIA’s decision was somehow arbitrary, irrational, or




       1
         Both children were born during the pendency of her removal proceedings, the
second child having been born on April 2, 2003. Ye also sought reopening of her case so
that she would be unhindered in her desire to testify in support of her husband’s asylum
proceedings.

                                              2
contrary to law. See id.

       An alien must file a motion to reopen no later than ninety days after the date on

which the final administrative decision was rendered See 8 C.F.R. § 1003.2(c)(2). There

is an exception to this limitation when an applicant for asylum or withholding of removal

demonstrates that his or her claim is based on changed circumstances in the country of

removal, if supporting evidence is material and was not available and could not have been

discovered or presented at the prior hearing. See 8 C.F.R. § 1003.2(c)(3)(ii).

       As stated earlier, Ye’s motion to reopen was based on her fear of persecution in

China in light of her two children born in the United States. Ye stated that she sent her

children to China for a visit with her mother, and during that visit, the local family

planning authorities learned of Ye’s violation of the family planning laws. Ye submitted

supporting materials, including an unauthenticated, unsigned notice to her mother from a

village committee in China, dated November 6, 2006. The notice stated that Ye is

considered as the subject for sterilization for having violated the family planning laws,

and it ordered her mother to urge Ye to return to China for sterilization. Ye also

submitted background evidence concerning enforcement of the family planning policy in

Fujian Province, her own affidavit, and a letter from her mother stating that villagers had

reported the existence of Ye’s two children to the village committee.

       Ye does not dispute that her motion to reopen was filed beyond the ninety-day

filing period, so her motion was subject to the criteria of 8 C.F.R. § 1003.2(c)(3)(ii). The



                                              3
BIA found that Ye’s motion to reopen was based solely on a change in personal

circumstances, not on any changed conditions in China. Despite her characterization of

her position, the record reflects that Ye has failed to identify any changed conditions in

China. Indeed, Ye asserts in her brief that the evidence in support of her motion to

reopen indicates that the family planning policy “continued to be enforced in China,”

Petitioner’s Brief at 16, but she does not assert that China’s policies have changed since

her prior agency proceedings or that the level of enforcement has increased since then.

Rather, Ye’s evidence shows a change in personal circumstances that potentially alters the

applicability of the family planning policy to her. In sum, we conclude that Ye did not

sufficiently allege or establish changed country conditions in China to qualify for an

exception to the ninety-day filing requirement. Thus, the BIA did not abuse its discretion

in denying the motion to reopen.

       We will deny the petition for review.




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