*Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Eric H. Holder, Jr., is automatically substituted for former Attorney General Michael B. Mukasey as respondent in this case.

08232010-27 08-0633-ag Zhou v. Holder BIA A098 272 444


### 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**  1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 27 th** **day of October, two thousand ten.** 4 5 **PRESENT:** 6 **DENNIS JACOBS,** 7 Chief Judge**,** 8 **JON O. NEWMAN,** 9 **PIERRE N. LEVAL,** 10 Circuit Judges**.** 11

**_________________________________________** 12 13 **XIAO HONG ZHOU,** 14 Petitioner**,** 15 16 **v. 08-0633-ag** 17 **NAC** 18 **ERIC H. HOLDER, JR., UNITED STATES** 19 **ATTORNEY GENERAL,** ***** 20 Respondent **.** 21

**_________________________________________** 222 08232010-27 **FOR PETITIONER: Theodore N. Cox, New York, New York.** 1 2 **FOR RESPONDENT: Gregory G. Katsas, Assistant** 3 **Attorney General; Michael P.** 4 **Lindemann, Assistant Director;** 5 **Christopher C. Fuller, Senior** 6 **Litigation Counsel, Office of** 7 **Immigration Litigation, United** 8 **States Department of Justice,** 9 **Washington, D.C.** 10 11 UPON DUE CONSIDERATION of this petition for review of a 12 Board of Immigration Appeals (“BIA”) decision, it is hereby 13 ORDERED, ADJUDGED, AND DECREED, that the petition for review 14 is DENIED. 15 Xiao Hong Zhou, a native and citizen of China, seeks 16 review of a January 11, 2008, BIA order denying her motion 17 to reopen. In re Xiao Hong Zhou , No. A098 272 444 (B.I.A. 18 Jan. 11, 2008). Zhou’s motion to reopen was based on her 19 claim that she fears persecution on account of the birth of 20 her U.S. citizen children in violation of China’s family 21 planning policy. The government argues that we lack 22 jurisdiction to review any challenge to the BIA’s denial of 23 Zhou’s motion to reopen because the agency pretermitted as 24 untimely her original asylum application based on the birth 25 of her U.S. citizen children. We assume hypothetical 26 jurisdiction in this case because “the jurisdictional issues 27 are complex and the substance of the claim is . . . plainly 283 08232010-27 without merit.” Ivanishvili v. U.S. Dep’t of Justice , 433 1 F.3d 332, 338 n.2 (2d Cir. 2006). 2 For largely the same reasons this Court set forth in 3 Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008), 4 we find no error in the BIA’s decision denying Zhou’s motion 5 to reopen. See id. at 168-72. Although Zhou is from 6 Zhejiang Province and the petitioners in Jian Hui Shao are 7 from Fujian Province, before the agency, as in her counseled 8 brief to this Court, Zhou relied on the evidence considered 9 in Jian Hui Shao and country conditions evidence related to 10 provinces other than Zhejiang. Additionally, as with the 11 evidence discussed in Jian Hui Shao , the record evidence 12 related to Zhejiang Province either does not discuss forced 13 sterilization or references isolated incidents in which 14 individuals not similarly situated to Zhou were persecuted. 15 See id. at 160-61. 16 For the foregoing reasons, this petition for review is 17 DENIED. As we have completed our review, any stay of 18 removal that the Court previously granted in this petition 19 is VACATED, and any pending motion for a stay of removal in 20 this petition is DISMISSED as moot. Any pending request for 21 oral argument in this petition is DENIED in accordance with 224 08232010-27 Federal Rule of Appellate Procedure 34(a)(2), and Second 1 Circuit Local Rule 34.1(b). 2

FOR THE COURT: 3 Catherine O’Hagan Wolfe, Clerk 4 5 6