Rong Ye v. Holder , 558 F. App'x 74 ( 2014 )

12-4439
Ye v. Holder
BIA
A094 789 122
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 12th day of March, two thousand fourteen.
PRESENT:
ROBERT A. KATZMANN,
Chief Judge,
DEBRA ANN LIVINGSTON,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
RONG YE, AKA YE RONG,
Petitioner,
v. 12-4439
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Lee Ratner, Law Offices of Michael
Brown, New York, New York.
FOR RESPONDENT: Stuart F. Delery, Acting Assistant
Attorney General; M. Jocelyn Lopez
Wright, Senior Litigation Counsel;
Anthony J. Messuri, Trial Attorney,
Office of Immigration Litigation,
United States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED that the petition for
review is DENIED.
Rong Ye, a native and citizen of the People’s Republic
of China, seeks review of an October 19, 2012, decision of
the BIA denying his motion to reconsider and reopen. In re
Rong Ye, No. A094 789 122 (B.I.A. Oct. 19, 2012). We assume
the parties’ familiarity with the underlying facts and
procedural history of this case.
The applicable standards of review are well-
established. See Jian Hui Shao v. Mukasey, 546 F.3d 138,
168-69, 173 (2d Cir. 2008). As an initial matter, although,
contrary to the government’s argument, Ye exhausted his
argument that the BIA erred in the scope of its prior
decision, he did so on remand and not in his motion to
reconsider; therefore, the issue is not properly before us.
See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 89-
90 (2d Cir. 2001) (providing that when an alien files a
timely petition for review from the denial of a motion, the
Court may review only the denial of that motion and not the
underlying agency decisions). Ye does not otherwise
challenge the BIA’s denial of his motion to reconsider.
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The BIA did not abuse its discretion in denying Ye’s
motion to reopen. An alien’s “ability to secure reopening
depends on a demonstration of prima facie eligibility for
[relief], which means []he must show a realistic chance that
the proffered new evidence would likely alter the result in
h[is] case.” Jian Hui Shao v. Mukasey, 546 F.3d 138, 168
(2d Cir. 2008) (citations and internal quotation marks
omitted); see also INS v. Abudu, 485 U.S. 94, 104-05 (1988).
The BIA did not err in finding that Ye failed to
establish his prima facie eligibility for relief based on
his practice of Falun Gong because he did not submit any
credible evidence showing that the Chinese government was,
or would likely become, aware of his purported practice of
Falun Gong. See Hongsheng Leng v. Mukasey, 528 F.3d 135,
143 (2d Cir. 2008); see also Jian Hui Shao, 546 F.3d at 168.
Accordingly, the BIA did not abuse its discretion in denying
Ye’s motion to reopen. See Jian Hui Shao, 546 F.3d at 168;
see also Abudu, 485 U.S. at 104-05.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DENIED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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