   09-2278-ag
   Ye v. Holder
                                                                       BIA
                                                               A200 039 930
                                                               A095 716 705
                   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.

        At a stated term of the United States Court of Appeals
   for the Second Circuit, held at the Daniel Patrick Moynihan
   United States Courthouse, 500 Pearl Street, in the City of
   New York, on the 17 th day of March, two thousand ten.

   PRESENT:
            ROBERT A. KATZMANN,
            PETER W. HALL,
            GERARD E. LYNCH,
                  Circuit Judges.
   ______________________________________

   ZENGWEI YE, a.k.a. ZENG WEI YE, QIN YE,
            Petitioners,
                                                  09-2278-ag
                  v.                              NAC

   ERIC H. HOLDER, JR., UNITED STATES
   ATTORNEY GENERAL,
            Respondent.
   ______________________________________
FOR PETITIONERS:       Yu Zhang, Law Offices of Fuhao Yang,
                       PLLC, New York, New York.

FOR RESPONDENT:        Tony West, Assistant Attorney
                       General; David V. Bernal, Assistant
                       Director; Lindsay E. Williams,
                       Attorney, Office of Immigration
                       Litigation, United States Department
                       of Justice, Washington, D.C.

     UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.

     Petitioners Zengwei Ye and Qin Ye, natives and citizens
of the People’s Republic of China, seek review of a May 4,
2009 order of the BIA denying their motion to reopen. In re
Ye, Nos. A200 039 930, A095 716 705 (B.I.A. May 4, 2009).
We assume the parties’ familiarity with the underlying facts
and procedural history of the case.

     As an initial matter, we lack jurisdiction to consider
Petitioners’ arguments to the extent they challenge the
agency’s underlying adverse credibility determination and
resulting denial of relief, because they failed to timely
petition this Court for review of that decision. See
8 U.S.C. § 1252(b)(1); see also Malvoisin v. INS, 268 F.3d
74, 75 (2d Cir. 2001); Ke Zhen Zhao v. U.S. Dep’t of
Justice, 265 F.3d 83, 90 (2d Cir. 2001) (providing that
where an alien timely petitions for review from the denial
of a motion to reopen, but not from the underlying decision,
this Court may review only the denial of the motion). The
only agency decision before the Court, therefore, is the
BIA’s May 2009 denial of Petitioners’ motion to reopen.

     The BIA did not abuse its discretion in denying
Petitioners’ motion to reopen as untimely. See Ali v.
Gonzales, 448 F.3d 515, 517 (2d Cir. 2006). Because the BIA
entered a final order of removal on August 8, 2008, the 90-
day deadline for a timely motion to reopen was November 6,
2008. See 8 C.F.R. § 1003.2(c)(2). Petitioners’ motion was
dated November 7, 2008, purportedly sent by express mail so


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as to arrive on November 8, 2008, and received by the BIA on
November 10, 2008.   There was no error in the BIA’s finding
that Petitioners’ motion was untimely.

     Apparently believing that their motion to reopen was
timely, Petitioners did not address the changed country
conditions exception to the filing deadline, 8 C.F.R.
§ 1003.2(c)(3)(ii), in their motion to reopen. Nonetheless,
the BIA considered whether Petitioners had established
changed country conditions and found that they had not.
Petitioners do not challenge that finding substantively
before this Court, arguing instead that the BIA should not
have reached this issue because they had not raised it in
their motion. Petitioners do not cite any legal authority
for this contention, and it would appear that the BIA merely
considered the possibility of changed country conditions in
an effort to construe the untimely motion in Petitioners’
favor. The BIA’s decision to reach the issue of changed
country conditions was not in error.

     Because Petitioners have waived any challenge to the
substance of the BIA’s analysis of changed country
conditions, we have no basis upon which to disturb it. See
Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n.7 (2d Cir.
2005). That analysis supports the BIA’s denial of
Petitioners’ motion to reopen. See 8 C.F.R.
§ 1003.2(c)(3)(ii). We decline to consider Petitioners’
remaining arguments.

     For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any pending motion
for a stay of removal in this petition is DISMISSED as moot.
Any pending request for oral argument in this petition is
DENIED in accordance with Federal Rule of Appellate
Procedure 34(a)(2), and Second Circuit Local Rule 34(b).

                           FOR THE COURT:
                           Catherine O’Hagan Wolfe, Clerk




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