                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 09-1160


TAI XING OUYANG,

                Petitioner,

          v.

ERIC H. HOLDER, JR., Attorney General,

                Respondent.



On Petition for Review of an Order of the Board of Immigration
Appeals.


Submitted:   January 27, 2010               Decided:   March 24, 2010


Before WILKINSON, KING, and DAVIS, Circuit Judges.


Petition dismissed in part and denied in part by unpublished per
curiam opinion.


Gary J. Yerman, New York, New York, for Petitioner. Tony West,
Assistant Attorney General, William C. Peachey, Assistant
Director, Mona Maria Yousif, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Tai Xing Ouyang, a native and citizen of the People’s

Republic of China, petitions for review of an order of the Board

of Immigration Appeals (“Board”) dismissing his appeal from the

immigration      judge’s        denial    of      his     requests       for    asylum,

withholding      of    removal,    and    protection        under      the   Convention

Against Torture.

            Ouyang first argues that the Board and the immigration

judge    erred    in    concluding       that    his     asylum     application        was

untimely    filed.          We     lack        jurisdiction       to     review      this

determination pursuant to 8 U.S.C. § 1158(a)(3) (2006), and find

that    Ouyang   has    failed     to    raise     a     constitutional        claim    or

colorable question of law that would fall under the exception

set forth in 8 U.S.C. § 1252(a)(2)(D) (2006).                           See Gomis v.

Holder, 571 F.3d 353, 358-59 (4th Cir. 2009), cert. denied, __

S. Ct. __, 78 U.S.L.W. 3091 (U.S. Jan. 11, 2010) (No. 09-194).

Given this jurisdictional bar, we cannot review the underlying

merits of Ouyang’s asylum claims.                 Accordingly, we dismiss this

portion of his petition for review.

            Ouyang       also     contends        that     the      Board      and     the

immigration judge erred in denying his request for withholding

of removal.      “Withholding of removal is available under 8 U.S.C.

§ 1231(b)(3) if the alien shows that it is more likely than not



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that h[is] life or freedom would be threatened in the country of

removal because of h[is] race, religion, nationality, membership

in a particular social group, or political opinion.”              Gomis, 571

F.3d at 359; see 8 U.S.C. § 1231(b)(3) (2006).                  Based on our

review of the record, we find that substantial evidence supports

the denial of Ouyang’s request for withholding of removal.                 See

Matter of J-S-, 24 I. & N. Dec. 520, 523-24 (A.G. 2008) (holding

that “spouses are not entitled to the same per se refugee status

that [8 U.S.C. § 1101(a)(42)(B)] expressly accords persons who

have       physically   undergone   forced      abortion   or   sterilization

procedures”) (overruling Matter of C-Y-Z-, 21 I. & N. Dec. 915

(BIA 1997) (en banc)); but see Lin-Jian v. Gonzales, 489 F.3d

182, 188 (4th Cir. 2007) (stating that a spouse “may establish

eligibility       for    asylum     or       withholding   of    removal    by

demonstrating that his wife was forced to undergo an abortion

. . .”) (citing C-Y-Z-). *

              We also find that substantial evidence supports the

finding that Ouyang failed to meet the standard for relief under

       *
       We note that we have yet to examine the effect on our
precedent of BIA’s overruling of Matter of C-Y-Z- in Matter of
J-S-. See Lin Zheng v. Attorney General, 557 F.3d 147 (3rd Cir.
2009) (en banc). We conclude that this is not a proper case in
which to undertake that examination.    Although his wife was
forcibly sterilized after giving birth to their second child,
Ouyang did not leave China until nearly 16 years after the
sterilization.



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the   Convention    Against     Torture.     To    obtain    such    relief,   an

applicant must establish that “it is more likely than not that

he or she would be tortured if removed to the proposed country

of removal.”       8 C.F.R. § 1208.16(c)(2) (2009).                We find that

Ouyang    failed    to   make      the   requisite       showing     before    the

immigration court.

           Accordingly,       we   dismiss   the   petition    for    review    in

part and deny the petition for review in part.                     We grant the

pending   motion    to   submit     on   briefs    and   dispense     with    oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would

not aid the decisional process.

                                                  PETITION DISMISSED IN PART
                                                          AND DENIED IN PART




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