         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.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                     Chief Judge,
 9                JON O. NEWMAN,
10                PIERRE N. LEVAL,
11                     Circuit Judges.
12       _________________________________________
13
14       XIAO YONG CHEN,
15                Petitioner,
16
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
 1   FOR PETITIONER:             Theodore N. Cox, New York, New York.
 2
 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.
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 Yong Chen, a native and citizen of China, seeks

16   review of a March 26, 2008, BIA order denying his motion to

17   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

19   that he fears persecution on account of the birth of his

20   U.S. citizen children in violation of China’s family

21   planning policy.       For largely the same reasons as this Court

22   set forth in Jian Hui Shao v. Mukasey, 546 F.3d 138 (2d Cir.

23   2008), we find no error in the BIA’s decision.       See id. at

24   168-72.       Additionally, the BIA reasonably found that Chen

25   failed to demonstrate his prima facie eligibility for relief

26   under the Convention Against Torture based on his

27   purportedly illegal departure from China.       See Mu Xiang Lin

28   v. United States Dep't of Justice, 432 F.3d 156 (2d Cir.

29   2005).


     08232010-29                       2
 1          For the foregoing reasons, this 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 as moot.       Any pending request for

 6   oral argument in this petition is DENIED in accordance with

 7   Federal Rule of Appellate Procedure 34(a)(2), and Second

 8   Circuit Local Rule 34.1(b).

 9                                   FOR THE COURT:
10                                   Catherine O’Hagan Wolfe, Clerk
11
12




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