08-1707-ag Chen v. Holder BIA A075 405 071

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 Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 27th day of October, two thousand ten.

6 PRESENT: 7 DENNIS JACOBS, 8 Chief Judge, 9 JON O. NEWMAN, 10 PIERRE N. LEVAL, 11 Circuit Judges.

12 _________________________________________ 14 XIAO YONG CHEN, 15 Petitioner, 17 v. 08-1707-ag 18 NAC 19 ERIC H. HOLDER, JR., UNITED STATES 20 ATTORNEY GENERAL,* 21 Respondent.

22 _________________________________________

* 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.

08232010-29 FOR PETITIONER: Theodore N. Cox, New York, New York.

3 FOR RESPONDENT: Gregory G. Katsas, Assistant 4 Attorney General; Michelle G.

5 Latour, Assistant Director; Sunah 6 Lee, Trial Attorney, Office of 7 Immigration Litigation, United 8 States Department of Justice, 9 Washington, D.C. 11 UPON DUE CONSIDERATION of this petition for review of a Board of Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND DECREED, that the petition for review is DENIED.

15 Xiao Yong Chen, a native and citizen of China, seeks review of a March 26, 2008, BIA order denying his motion to reopen. In re Xiao Yong Chen, No. A075 405 071 (B.I.A. Mar.

18 26, 2008). Chen’s motion to reopen was based on his claim that he fears persecution on account of the birth of his U.S. citizen children in violation of China’s family planning policy. For largely the same reasons as this Court set forth in Jian Hui Shao v. Mukasey, 546 F.3d 138 (2d Cir. 2008), we find no error in the BIA’s decision. See id. at 168-72. Additionally, the BIA reasonably found that Chen failed to demonstrate his prima facie eligibility for relief under the Convention Against Torture based on his purportedly illegal departure from China. See Mu Xiang Lin v. United States Dep't of Justice, 432 F.3d 156 (2d Cir. 2005).

08232010-29 2 1 For the foregoing reasons, this petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

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

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