Tai Xing Ouyang v. Holder ( 2010 )

UNPUBLISHED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Petition dismissed in part and denied in part by unpublished per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Unpublished opinions are not binding precedent in this circuit.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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