09-2604-ag
Lu v. Holder
UNITED STATES COURT OF APPEALS
F OR T HE S ECOND C IRCUIT
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.
At a stated Term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 2 nd day of February, two thousand and ten.
Present: RICHARD C. WESLEY,
GERARD E. LYNCH,
Circuit Judges,
MARK R. KRAVITZ,
District Judge. *
________________________________________________
YANYU LU, QINGFENG CHEN,
Petitioners,
- v. - (09-2604-ag)
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
__________________________________________________
*
The Honorable Mark R. Kravitz,, of the United States District Court
for the District of Connecticut, sitting by designation.
1
For Petitioners: YANYU LU, QINGFENG CHEN, pro se, New
York, New York
For Respondent: TONY WEST, Assistant Attorney General;
ANTHONY C. PAYNE, Senior Litigation
Counsel; YEDIDYA COHEN, Trial Attorney,
Office of Immigration Litigation, United
States Department of Justice, Washington,
D.C.
1 UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED,
2 AND DECREED, that the petition for review is DENIED.
3 Yanyu Lu and Qingfeng Chen, natives and citizens of
4 China, seek review of a May 29, 2009 order of the Board of
5 Immigration Appeals (“BIA”), reversing the May 17, 2007
6 decision of Immigration Judge (“IJ”) George T. Chew, which
7 granted their application for asylum. In re Yanyu Lu,
8 Qingfeng Chen, Nos. A094 813 907, A094 813 908 (B.I.A. May
9 29, 2009), rev’g Nos. A094 813 907, A094 813 908 (Immig. Ct.
10 N.Y. City May 17, 2007). We presume the parties’
11 familiarity with the underlying facts and procedural history
12 in this case.
13 Under the circumstances of this case, we review only the
14 decision of the BIA. See Yan Chen v. Gonzales, 417 F.3d
15 268, 271 (2d Cir. 2005). We review an agency’s factual
2
1 findings for substantial evidence, and will reverse factual
2 determinations only if any reasonable adjudicator would be
3 compelled to conclude the contrary. See Bah v. Mukasey, 529
4 F.3d 99, 110 (2d Cir. 2008).
5 Substantial evidence supports the BIA’s determination
6 that the petitioners failed to demonstrate a well-founded
7 fear of persecution under the Chinese family planning policy
8 on account of the birth of their U.S. citizen children. See
9 Jian Hui Shao v. Mukasey, 546 F.3d 138, 158-73 (2d Cir.
10 2008). Because the BIA did not err in finding that
11 petitioners failed to demonstrate a well-founded fear of
12 persecution on account of the birth of their U.S. citizen
13 children, it reasonably denied their applications for
14 asylum, withholding of removal, and relief under the
15 Convention Against Torture (“CAT”) insofar as those
16 applications were based on that claim. See Paul v.
17 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).
18 We do not consider petitioners’ argument that they are
19 eligible for CAT relief based on their purportedly illegal
20 departure from China because that argument was not properly
21 exhausted at the administrative level. See Lin Zhong v.
22 U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir. 2007).
3
1 For the foregoing reasons, the petition for review is
2 DENIED. As we have completed our review, any stay of
3 removal that the Court previously granted in this petition
4 is VACATED, and any pending motion for a stay of removal in
5 this petition is DISMISSED.
6
7
8 For the Court
9 Catherine O’Hagan Wolfe, Clerk
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