The Honorable Mark R. Kravitz,, of the United States District Court

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for the District of Connecticut, sitting by designation.

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09-2604-ag

Lu v. Holder

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.

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 day of February, two thousand and ten. nd

Present: RICHARD C. WESLEY,

GERARD E. LYNCH,

Circuit Judges,

MARK R. KRAVITZ,

District Judge.

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________________________________________________

YANYU LU, QINGFENG CHEN,

Petitioners,

- v. - (09-2604-ag)

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL,

Respondent.

__________________________________________________ 
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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
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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). 
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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.

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8 For the Court

9 Catherine O’Hagan Wolfe, Clerk

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