         10-110-ag
         Ye v. Holder
                                                                                      BIA
                                                                             A077 993 844
                         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 24 th day of November, two thousand               ten.
 5
 6       PRESENT:
 7                ROGER J. MINER,
 8                JOSEPH M. McLAUGHLIN,
 9                ROBERT A. KATZMANN,
10                       Circuit Judges.
11       _____________________________________
12
13       DE JIN YE,
14                Petitioner,
15
16                      v.                                      10-110-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Peter L. Quan, New York, New York.
24
25       FOR RESPONDENT:               Tony West, Assistant Attorney
26                                     General; Anh-Thu P. Mai-Windle,
27                                     Senior Litigation Counsel; Arthur L.
28                                     Rabin, 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.

5        Petitioner De Jin Ye, a native and citizen of the

6    People’s Republic of China (“China”), seeks review of a

7    December 17, 2009 decision of the BIA denying his motion to

8    reopen.    In re De Jin Ye, No. A077 993 844 (B.I.A. Dec. 17,

9    2009).    We assume the parties’ familiarity with the

10   underlying facts and procedural history of this case.

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

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

13   Cir. 2006).    We review the BIA’s evaluation of country

14   conditions evidence submitted with a motion to reopen under

15   the substantial evidence standard.     Jian Hui Shao v.

16   Mukasey, 546 F.3d 138, 169 (2d Cir. 2008).

17       It is beyond dispute that Ye’s motion to reopen was

18   untimely, as it was filed almost five years after the

19   agency’s order of removal became final.     See 8 C.F.R.

20   § 1003.2(c)(2).     However, this time limitation does not

21   apply to a motion to reopen asylum proceedings that is

22   “based on changed circumstances arising in the country of


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1    nationality or in the country to which deportation has been

2    ordered, if such evidence is material and was not available

3    and could not have been discovered or presented at the

4    previous hearing.”   8 C.F.R. § 1003.2(c)(3)(ii).   Here, Ye

5    waives any challenge to the BIA’s finding that he failed to

6    satisfy such exception, arguing instead that the BIA failed

7    to adequately consider the evidence he submitted in support

8    of his motion.

9        Contrary to Ye’s argument, there is no indication that

10   the BIA ignored any evidence Ye submitted because the BIA

11   explicitly referenced all of the materials he submitted with

12   his motion.   See Xiao Ji Chen v. U.S. Dep’t of Justice, 471

13   F.3d 315, 337 n.17 (2d Cir. 2006) (presuming that the agency

14   “has taken into account all of the evidence before [it],

15   unless the record compellingly suggests otherwise”).

16   Moreover, the BIA reasonably declined to credit the

17   unauthenticated notice Ye submitted based on the IJ’s

18   underlying adverse credibility determination.   See Qin Wen

19   Zheng v. Gonzales, 500 F.3d 143, 149 (2d Cir. 2007).

20   Accordingly, because Ye waives any challenge to the BIA’s

21   dispositive finding that he failed to satisfy the exception

22   to the time limitation applicable to motions to reopen, and


                                   3
1    because the BIA adequately considered his evidence, we find

2    that the BIA did not abuse its discretion in denying his

3    motion to reopen as untimely.        See 8 C.F.R. § 1003.2(c)(2).

4        We further note that the BIA did not err in finding

5    that, in the alternative, Ye failed to establish his prima

6    facie eligibility for relief.       See INS v. Abudu, 485 U.S.

7    94, 104-05 (1988).   Contrary to Ye’s argument, the BIA

8    reasonably found that because Ye had practiced Falun Gong

9    exclusively in the United States, his situation differed

10   from that of Falun Gong practitioners in China.       Because Ye

11   submitted no credible evidence discussing the treatment of

12   individuals who had practiced Falun Gong in the United

13   States, the BIA reasonably found that Ye failed to establish

14   his prima facie eligibility for relief, which provided an

15   alternative and independent basis for denying his motion to

16   reopen.   See id.

17       For the foregoing reasons, the petition for review is

18   DENIED.   As we have completed our review, any stay of

19   removal that the Court previously granted in this petition

20   is VACATED, and any pending motion for a stay of removal in

21   this petition is DISMISSED as moot.       Any pending request for

22   oral argument in this petition is DENIED in accordance with


                                     4
1   Federal Rule of Appellate Procedure 34(a)(2), and Second

2   Circuit Local Rule 34.1(b).

3                                 FOR THE COURT:
4                                 Catherine O’Hagan Wolfe, Clerk
5
6




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