         11-760-ag
         Ye v. Holder
                                                                                         BIA
                                                                                 A078 425 064
                         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 19th day of December, two thousand eleven.
 5
 6       PRESENT:
 7                BARRINGTON D. PARKER,
 8                RICHARD C. WESLEY,
 9                RAYMOND J. LOHIER, JR.,
10                    Circuit Judges.
11       _________________________________________
12
13       SHUI XIAM YE, AKA SAN MEI HUANG, AKA
14       SHUI XIAN YE,
15                Petitioner,
16
17                      v.                                         11-760-ag
18                                                                 NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _________________________________________
23
24       FOR PETITIONER:                Ai Tong, New York, New York.
25
26       FOR RESPONDENT:                Tony West, Assistant Attorney
27                                      General; Mark C. Walters, Senior
28                                      Litigation Counsel; Lyle D. Jentzer,
29                                      Attorney, Office of Immigration
30                                      Litigation, United States Department
31                                      of Justice, Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

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

 3   ORDERED, ADJUDGED, AND DECREED that the petition for review

 4   is DENIED.

 5       Petitioner Shui Xiam Ye, a native and citizen of the

 6   People’s Republic of China, seeks review of the February 15,

 7   2011 order of the BIA denying her motion to reopen.     In re

 8   Shui Xiam Ye, No. A078 425 064 (B.I.A. Feb. 15, 2011).     We

 9   assume the parties’ familiarity with the underlying facts

10   and procedural history of the case.    As an initial matter,

11   because Ye does not challenge the BIA’s denial of her motion

12   based on her claim relating to China’s family planning

13   policy, we do not address it.

14       The BIA’s denial of Ye’s motion to reopen as untimely

15   and number-barred was not an abuse of discretion.     See Kaur

16   v. BIA, 413 F.3d 232, 233 (2d Cir. 2005) (per curiam).     An

17   alien may file one motion to reopen, generally no later than

18   90 days after the date on which the final administrative

19   decision was rendered in the proceedings sought to be

20   reopened.    8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R.

21   § 1003.2(c)(2).    There is no dispute that Ye’s 2010 motion

22   was untimely and number-barred, as she previously filed two


                                     2
 1   motions to reopen, and the final administrative order was

 2   issued in 2004.   See 8 U.S.C. § 1229a(c)(7)(A), (C)(i);

 3   8 C.F.R. § 1003.2(c)(2).   The time limitation does not apply

 4   to a motion to reopen if it is “based on changed

 5   circumstances arising in the country of nationality or in

 6   the country to which deportation has been ordered, if such

 7   evidence is material and was not available and could not

 8   have been discovered or presented at the previous hearing.”

 9   8 C.F.R. § 1003.2(c)(3)(ii); see also 8 U.S.C.

10   § 1229a(c)(7)(C)(ii).   However, Ye failed to establish

11   changed circumstances in China.

12       Ye argues that she demonstrated an increase in China’s

13   persecution of Falun Gong practitioners since the 2008

14   Olympics, and that she was under heightened scrutiny by

15   Chinese officials since they intercepted a Falun Gong DVD

16   she sent to her father in China.   However, the BIA’s

17   determination that the evidence failed to demonstrate

18   changed country circumstances is supported by substantial

19   evidence, as Ye’s evidence did not show that China’s

20   repression of Falun Gong increased since the time of her

21   merits hearing.   See Jian Hui Shao v. Mukasey, 546 F.3d 138,

22   169 (2d Cir. 2008).


                                   3
 1       Because the evidence Ye submitted was insufficient to

 2   establish a change in country conditions, the BIA did not

 3   abuse its discretion in concluding that she failed to meet

 4   an exception to the filing deadline, and in denying her

 5   untimely motion to reopen.    See 8 U.S.C.

 6   § 1229a(c)(7)(C)(i), (ii); 8 C.F.R. § 1003.2(c)(2), (3).

 7      For the foregoing reasons, the petition for review is

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

 9   removal that the Court previously granted in this petition

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

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

12   oral argument in this petition is DENIED in accordance with

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

14   Circuit Local Rule 34.1(b).

15                                 FOR THE COURT:
16                                 Catherine O’Hagan Wolfe, Clerk
17




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