10-1470

Yu v. Holder

BIA

Schoppert, IJ

A099 589 782

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 Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 27th 4 day of March, two thousand fourteen.

5

6 PRESENT:

7 JON O. NEWMAN,

8 DENNIS JACOBS,

9 PIERRE N. LEVAL,

10 Circuit Judges. 

11 _____________________________________

12

13 SHI JIE YU,

14 Petitioner, 

15

16 v. 10-1470

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES

19 ATTORNEY GENERAL,

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONER: John Chang, New York, New York.

24

25 FOR RESPONDENT: Tony West, Assistant Attorney

26 General; Ernesto H. Molina, Jr.,

27 Assistant Director; Dana M.

28 Camilleri, Trial Attorney; Office of

29 Immigration Litigation, United

09232013-13
1 States Department of Justice,

2 Washington, D.C.

3 UPON DUE CONSIDERATION of this petition for review of a

4 decision of the Board of Immigration Appeals (“BIA”), it is

5 hereby ORDERED, ADJUDGED, AND DECREED that the petition for

6 review is DISMISSED in part and DENIED in part.

7 Petitioner Shi Jie Yu seeks review of an April 14,

8 2010, decision of the BIA, affirming the May 20, 2008,

9 decision of Immigration Judge (“IJ”) Douglas Schoppert,

10 denying her application for asylum, withholding of removal,

11 and relief under the Convention Against Torture (“CAT”). In

12 re Shi Jie Yu, No. A099 589 782 (B.I.A. Apr. 14, 2010),

13 aff’g No. A099 589 782 (Immig. Ct. N.Y. City May 20, 2008). 

14 We assume the parties’ familiarity with the underlying facts

15 and procedural history of this case.

16 Under the circumstances of this case, we have reviewed

17 both the IJ’s and the BIA’s opinions. See Zaman v. Mukasey,

18 514 F.3d 233, 237 (2d Cir. 2008). The applicable standards

19 of review are well-established. See Jian Hui Shao v.

20 Mukasey, 546 F.3d 138, 157-58 (2d Cir. 2008). 

21 Yu, a native and citizen of China, sought relief from

22 removal based on her claim that she fears persecution

23 because she has had more than one child in violation of

09232013-13 2
1 China’s population control program. As an initial matter,

2 we lack jurisdiction to review the agency’s pretermission of

3 Yu’s asylum application as untimely because her legal

4 argument that she was not required to demonstrate that she

5 filed her application within a reasonable time period after

6 her changed circumstances is frivolous. See 8 U.S.C.

7 § 1158(a)(3); 8 U.S.C. § 1252(a)(2)(D); see also 8 C.F.R.

8 § 1208.4(a)(4)(ii) (stating that “[t]he applicant shall file

9 an asylum application within a reasonable period given []

10 ‘changed circumstances’.”); Barco-Sandoval v. Gonzales, 516

11 F.3d 35, 40 (2d Cir. 2008). 

12 Additionally, for largely the same reasons as this

13 Court set forth in Jian Hui Shao, 546 F.3d 138, we find no

14 error in the agency’s determination that Yu failed to

15 demonstrate her eligibility for withholding of removal or

16 CAT relief based on her violation of the family planning

17 policy. See id. at 158-72. While the petitioners in Jian

18 Hui Shao were from Fujian Province, Yu is from Zhejiang

19 Province. However, as with the evidence discussed in Jian

20 Hui Shao, the evidence Yu submitted relating to Zhejiang

21 Province is deficient because it does not discuss forced

22 sterilizations. See id. at 160-61, 171-72. 

09232013-13 3
1 For the foregoing reasons, this petition for review is

2 DISMISSED in part and DENIED in part. As we have completed

3 our review, any stay of removal that the Court previously

4 granted in this petition is VACATED, and any pending motion

5 for a stay of removal in this petition is DISMISSED as moot. 

6 Any pending request for oral argument in this petition is

7 DENIED in accordance with Federal Rule of Appellate

8 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

9 FOR THE COURT: 

10 Catherine O’Hagan Wolfe, Clerk

11

09232013-13 4