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 JA NUARY 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**  1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 27 th** **day of March, two thousand fourteen.** 4 5 **PRESENT:** 6 **JON O. NEWMAN,** 7 **DENNIS JACOBS,** 8 **PIERRE N. LEVAL,** 9 Circuit Judges**.** 10

**_____________________________________** 11 12 **SHI JIE YU,** 13 Petitioner**,** 14 15 **v. 10-1470** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent**.** 20

**_____________________________________** 21 22 **FOR PETITIONER: John Chang, New York, New York.** 23 24 **FOR RESPONDENT: Tony West, Assistant Attorney** 25 **General; Ernesto H. Molina, Jr.,** 26 **Assistant Director; Dana M.** 27 **Camilleri, Trial Attorney; Office of** 28 **Immigration Litigation, United** 29

09232013-13**States Department of Justice,** 1 **Washington, D.C.** 2 UPON DUE CONSIDERATION of this petition for review of a 3 decision of the Board of Immigration Appeals (“BIA”), it is 4 hereby ORDERED, ADJUDGED, AND DECREED that the petition for 5 review is DISMISSED in part and DENIED in part. 6 Petitioner Shi Jie Yu seeks review of an April 14, 7 2010, decision of the BIA, affirming the May 20, 2008, 8 decision of Immigration Judge (“IJ”) Douglas Schoppert, 9 denying her application for asylum, withholding of removal, 10 and relief under the Convention Against Torture (“CAT”). In 11 re Shi Jie Yu , No. A099 589 782 (B.I.A. Apr. 14, 2010), 12 aff’gNo. A099 589 782 (Immig. Ct. N.Y. City May 20, 2008). 13 We assume the parties’ familiarity with the underlying facts 14 and procedural history of this case. 15 Under the circumstances of this case, we have reviewed 16 both the IJ’s and the BIA’s opinions. See Zaman v. Mukasey, 17 514 F.3d 233, 237 (2d Cir. 2008). The applicable standards 18 of review are well-established. See Jian Hui Shao v. 19 Mukasey, 546 F.3d 138, 157-58 (2d Cir. 2008). 20 Yu, a native and citizen of China, sought relief from 21 removal based on her claim that she fears persecution 22 because she has had more than one child in violation of 23

2 09232013-13China’s population control program. As an initial matter, 1 we lack jurisdiction to review the agency’s pretermission of 2 Yu’s asylum application as untimely because her legal 3 argument that she was not required to demonstrate that she 4 filed her application within a reasonable time period after 5 her changed circumstances is frivolous. See 8 U.S.C. 6 § 1158(a)(3); 8 U.S.C. § 1252(a)(2)(D); see also 8 C.F.R. 7 § 1208.4(a)(4)(ii) (stating that “[t]he applicant shall file 8 an asylum application within a reasonable period given [] 9 ‘changed circumstances’.”);Barco-Sandoval v. Gonzales, 516 10 F.3d 35, 40 (2d Cir. 2008). 11 Additionally, for largely the same reasons as this 12 Court set forth in Jian Hui Shao , 546 F.3d 138, we find no 13 error in the agency’s determination that Yu failed to 14 demonstrate her eligibility for withholding of removal or 15 CAT relief based on her violation of the family planning 16 policy. See id.at 158-72. While the petitioners in Jian 17 Hui Shao were from Fujian Province, Yu is from Zhejiang 18 Province. However, as with the evidence discussed in Jian 19 Hui Shao , the evidence Yu submitted relating to Zhejiang 20 Province is deficient because it does not discuss forced 21 sterilizations. See id. at 160-61, 171-72. 22

3 09232013-13For the foregoing reasons, this petition for review is 1 DISMISSED in part and DENIED in part. As we have completed 2 our review, any stay of removal that the Court previously 3 granted in this petition is VACATED, and any pending motion 4 for a stay of removal in this petition is DISMISSED as moot. 5 Any pending request for oral argument in this petition is 6 DENIED in accordance with Federal Rule of Appellate 7 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b). 8

FOR THE COURT: 9 Catherine O’Hagan Wolfe, Clerk 10 11

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