Yu v. Barr BIA A072 485 206

17-2117
Yu v. Barr
BIA
A072 485 206
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.

At a stated term of the United States Court of Appeals 1
for the Second Circuit, held at the Thurgood Marshall 2
United States Courthouse, 40 Foley Square, in the City of 3
New York, on the 8
th
day of January, two thousand twenty. 4
5
PRESENT: 6
JOHN M. WALKER, JR., 7
PIERRE N. LEVAL, 8
JOSÉ A. CABRANES, 9
Circuit Judges. 10
_____________________________________ 11
12
HO MAI YU, AKA HE MEI YU, 13
Petitioner, 14
15
v. 17-2117 16
NAC 17
WILLIAM P. BARR, UNITED STATES 18
ATTORNEY GENERAL, 19
Respondent. 20
_____________________________________ 21
22
FOR PETITIONER: Yee Ling Poon; Deborah 23
Niedermeyer, Of Counsel, Law 24
Office of Yee Ling Poon, New 25
York, NY. 26
27
FOR RESPONDENT: Chad A. Readler, Acting Assistant 28
Attorney General; Keith I. 29
McManus, Assistant Director; 30
Maarja T. Luhtaru, Trial Attorney, 31
Office of Immigration Litigation, 32
United States Department of 33
Justice, Washington, DC. 34

2

UPON DUE CONSIDERATION of this petition for review of a 1
Board of Immigration Appeals (“BIA”) decision, it is hereby 2
ORDERED, ADJUDGED, AND DECREED that the petition for review 3
is DENIED. 4
Petitioner Ho Mai Yu, a native and citizen of the 5
People’s Republic of China, seeks review of a June 13, 2017, 6
decision of the BIA, denying her motion to reopen. In re Ho 7
Mai Yu, No. A072 485 206 (B.I.A. June 13, 2017). We assume 8
the parties’ familiarity with the underlying facts and 9
procedural history in this case. 10
The applicable standards of review are well established. 11
See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir. 12
2008). In her motion to reopen, Yu asserted that conditions 13
for Christians had worsened in her home province of Zhejiang, 14
China excusing the untimely and number barred filing of her 15
motion and demonstrating her prima facie eligibility for 16
asylum based on her practice of Christianity. 17
It is undisputed that Yu’s 2017 motion was untimely and 18
number barred because it was her second motion to reopen 19
filed more than 12 years after her exclusion order became 20
final in 2004. See 8 U.S.C. § 1229a(c)(7)(A), (C)(i); 21
8 C.F.R. § 1003.2(c)(2). However, the time and number 22
limitations for filing a motion to reopen do not apply if 23

3

reopening is sought to apply for asylum and the motion “is 1
based on changed country conditions arising in the country 2
of nationality or the country to which removal has been 3
ordered, if such evidence is material and was not available 4
and would not have been discovered or presented at the 5
previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); 6
8 C.F.R. § 1003.2(c)(3). The BIA did not err in finding 7
that Yu failed to demonstrate such conditions. 8
“In determining whether evidence accompanying a motion 9
to reopen demonstrates a material change in country 10
conditions that would justify reopening, [the BIA] compare[s] 11
the evidence of country conditions submitted with the motion 12
to those that existed at the time of the merits hearing 13
below.” In re S-Y-G-, 24 I. & N. Dec. 247, 253 (B.I.A. 2007). 14
As the BIA found, the evidence demonstrates that the Chinese 15
government has repressed Christians, attempted to control 16
their religious practices, and sporadically cracked down on 17
rapid religious growth since long before Yu’s 1995 hearing. 18
Accordingly, because the BIA reasonably concluded that 19
Yu failed to demonstrate a material change in conditions in 20
China, it did not abuse its discretion in denying her 21
motion as untimely and number barred. See 8 U.S.C. 22
§ 1229a(c)(7)(A), (C). Because the denial as untimely and 23

4

number barred is dispositive, we do not reach the BIA’s 1
alternative basis for denying Yu’s motion—her failure to 2
establish her prima facie eligibility for relief. See INS 3
v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule 4
courts and agencies are not required to make findings on 5
issues the decision of which is unnecessary to the results 6
they reach.”). 7
For the foregoing reasons, the petition for review is 8
DENIED. As we have completed our review, any stay of removal 9
that the Court previously granted in this petition is VACATED, 10
and any pending motion for a stay of removal in this petition 11
is DISMISSED as moot. Any pending request for oral argument 12
in this petition is DENIED in accordance with Federal Rule of 13
Appellate Procedure 34(a)(2), and Second Circuit Local Rule 14
34.1(b). 15
FOR THE COURT: 16
Catherine O’Hagan Wolfe 17
Clerk of Court 18
19