19-1574 Ye v. Garland BIA A077 353 715

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 TO 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 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 28th day of May, two thousand twenty-one. 5 6 PRESENT: 7 RAYMOND J. LOHIER, JR., 8 RICHARD J. SULLIVAN, 9 STEVEN J. MENASHI, 10 Circuit Judges. 11 _____________________________________ 12 13 CHANG JU YE, 14 Petitioner, 15 16 v. 19-1574 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: John Chang, New York, NY 24 25 FOR RESPONDENT: Bryan Boynton, Acting Assistant 26 Attorney General; Carl McIntyre, 27 Assistant Director; Aliza B. 28 Alyeshmerni, Trial Attorney, 29 Office of Immigration Litigation, 30 United States Department of 31 Justice, Washington, DC 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 Chang Ju Ye, a native and citizen of the

6 People’s Republic of China, seeks review of a May 6, 2019

7 decision of the BIA, denying his third motion to reopen his

8 removal proceedings. In re Chang Ju Ye, No. A077 353 715

9 (B.I.A. May 6, 2019). We assume the parties’ familiarity

10 with the underlying facts and procedural history.

11 We review the BIA’s decision to deny Ye’s third motion

12 to reopen for abuse of discretion. See Jian Hui Shao v.

13 Mukasey,

(2d Cir. 2008). In his motion

14 to reopen, Ye asserted that conditions for Christians had

15 worsened in China, which excused the untimely and number-

16 barred filing of his motion and demonstrated his prima facie

17 eligibility for asylum based on his practice of Christianity

18 in the United States.

19 It is undisputed that Ye’s 2018 motion was time and

20 number-barred because it was his third motion to reopen filed

21 more than 14 years after his removal order became final in 2 1 2003. See 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 8 C.F.R.

2 § 1003.2(c)(2). These time and number limits, however, do

3 not apply to a motion to reopen that “is based on changed

4 country conditions arising in the country of nationality or

5 the country to which removal has been ordered, if such

6 evidence is material and was not available and would not have

7 been discovered or presented at the previous proceeding.”

8 8 U.S.C. § 1229a(c)(7)(C)(ii);

(c)(3).

9 Nevertheless, the BIA did not err here in finding that Ye

10 failed to establish a material change in conditions in China.

11 “In determining whether evidence accompanying a motion

12 to reopen demonstrates a material change in country

13 conditions that would justify reopening, [the BIA] compare[s]

14 the evidence of country conditions submitted with the motion

15 to those that existed at the time of the merits hearing

16 below.” In re S-Y-G-,

(B.I.A. 2007).

17 As the BIA found, the evidence demonstrates that the Chinese

18 government has continuously repressed and mistreated

19 unregistered Christian groups since before Ye’s 2002 hearing.

20 See

(“Change that is incremental or incidental

21 does not meet the regulatory requirements for late 3 1 motions.”).

2 Accordingly, because the BIA reasonably concluded that

3 Ye failed to demonstrate a material change in conditions in

4 China, it did not abuse its discretion in denying his motion

5 as untimely and number-barred. See 8 U.S.C.

6 § 1229a(c)(7)(A), (C). Because the denial as untimely and

7 number-barred is dispositive, we do not reach the BIA’s

8 alternative basis for denying Ye’s motion, i.e., his failure

9 to establish his prima facie eligibility for relief. See INS

10 v. Bagamasbad,

(1976) (“As a general rule

11 courts and agencies are not required to make findings on

12 issues the decision of which is unnecessary to the results

13 they reach.”).

14 For the foregoing reasons, the petition for review is

15 DENIED. All pending motions and applications are DENIED and

16 stays VACATED.

17 FOR THE COURT: 18 Catherine O’Hagan Wolfe, 19 Clerk of Court

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