         13-1215
         Ye v. Holder
                                                                                        BIA
                                                                               A077 322 933
                             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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 2nd day of October, two thousand fourteen.
 5
 6       PRESENT:
 7                DEBRA ANN LIVINGSTON,
 8                DENNY CHIN,
 9                RAYMOND J. LOHIER, JR.,
10                     Circuit Judges.
11       _____________________________________
12
13       Hua En Ye,
14                Petitioner,
15
16                      v.                                      13-1215
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Ai Tong, New York, New York.
24
25       FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
26                                     General; Jennifer L. Lightbody,
27                                     Senior Litigation Counsel; Edward E.
28                                     Wiggers, Trial 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 in part and DISMISSED in part.

 5       Petitioner Hua En Ye, a native and citizen of China,

 6   seeks review of a March 12, 2013, decision of the BIA

 7   denying his motion to reopen.       In re Hua En Ye, No. A077 322

 8   933 (B.I.A. Mar. 12, 2013).     We assume the parties’

 9   familiarity with the underlying facts and procedural history

10   of this case.

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

12   abuse of discretion, mindful of the Supreme Court’s

13   admonition that such motions are “disfavored.”       Ali v.

14   Gonzales, 448 F.3d 515, 517 (2d Cir. 2006) (citing INS v.

15   Doherty, 502 U.S. 314, 322-23 (1992)).       We review the BIA’s

16   factual findings regarding country conditions under the

17   substantial evidence standard.       See Jian Hui Shao v.

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

19       The BIA did not abuse its discretion in denying Ye’s

20   motion to reopen as untimely as it was filed more than seven

21   years after his final order of removal.       See 8 U.S.C.

22   § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).      Although


                                     2
 1   there are no time limitations for filing a motion to reopen

 2   if it is “based on changed country conditions arising in the

 3   country of nationality or the country to which removal has

 4   been ordered, if such evidence is material and was not

 5   available and would not have been discovered or presented at

 6   the previous proceeding,” 8 U.S.C. § 1229a(c)(7)(C)(ii); see

 7   also 8 C.F.R. § 1003.2(c)(3)(ii), Ye has not established any

 8   error in the BIA’s conclusion that there was no material

 9   change.

10       First, Ye’s conversion to Christianity is a change in

11   personal circumstances that does not excuse the time

12   limitation.   See Li Yong Zheng v. U.S. Dep’t of Justice, 416

13   F.3d 129, 130-31 (2d Cir. 2005); see also Wei Guang Wang v.

14   BIA, 437 F.3d 270, 274 (2d Cir. 2006).   Moreover, there is

15   no basis for finding that the BIA ignored evidence of

16   country conditions, as the BIA explicitly discussed the

17   evidence and reasonably concluded that it did not establish

18   a change since the time of the hearing because the reports

19   did not describe conditions at the time of Ye’s 2002 hearing

20   and, to the extent that it demonstrated any change from

21   previous years, it showed a continuation of religious

22   repression, not new conditions.   See Xiao Ji Chen v. U.S.

23   Dep’t of Justice, 471 F.3d 315, 336 n.17 (2d Cir. 2006)

                                   3
 1   (presuming that the agency “has taken into account all of

 2   the evidence before [it], unless the record compellingly

 3   suggests otherwise”); Matter of S-Y-G-, 24 I. & N. Dec. 247,

 4   253 (BIA 2007)(“In determining whether evidence accompanying

 5   a motion to reopen demonstrates a material change in country

 6   conditions that would justify reopening, [the BIA]

 7   compare[s] the evidence of country conditions submitted with

 8   the motion to those that existed at the time of the merits

 9   hearing below.”).

10         Insofar as Ye challenges the agency’s decision not to

11   reopen his case sua sponte, this decision is an entirely

12   discretionary one by the BIA, and we lack jurisdiction to

13   consider it.   See Ali, 448 F.3d at 518.     Ye also argues for

14   the first time in his brief in this Court that he is

15   entitled to file a successive asylum application; however,

16   because Ye failed to raise this claim before the BIA, the

17   claim is unexhausted and we lack jurisdiction to consider

18   it.   See Mei Fun Wong v. Holder, 633 F.3d 64, 65 (2d Cir.

19   2011).

20         For the foregoing reasons, the petition for review is

21   DENIED in part and DISMISSED in part.      As we have completed

22   our review, any stay of removal that the Court previously


                                   4
1   granted in this petition is VACATED, and any pending motion

2   for a stay of removal in this petition is DENIED as moot.

3   Any pending request for oral argument in this petition is

4   DENIED in accordance with Federal Rule of Appellate

5   Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

6                              FOR THE COURT:
7                              Catherine O’Hagan Wolfe, Clerk
8
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