    08-5103-ag
    Xie v. Holder
                                                                                IJ Straus
                                                                                     BIA
                                                                            A097 670 218
                      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
    for the Second Circuit, held at the Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 26 th day of July, two thousand ten.

    PRESENT: REENA RAGGI,
             DEBRA ANN LIVINGSTON,
                      Circuit Judges. *
    _________________________________________

    BING XIE,
                    Petitioner,

                     v.                                       08-5103-ag
                                                              NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _________________________________________

    FOR PETITIONER:                Carrol L. Lucht, Stephen Wizner, The
                                   Jerome N. Frank Legal Services
                                   Organization, New Haven,



             *
          Circuit Judge Ralph K. Winter, originally a member of
    the panel, recused himself from this case. The remaining two
    panel members, who are in agreement, decide this motion
    pursuant to Second Circuit Internal Operating Procedure E(b).
                       Connecticut. 1
 FOR RESPONDENT:       Tony West, Assistant Attorney
                       General; Aviva L. Poczter, Senior
                       Litigation Counsel; Jesse Lloyd
                       Busen, Trial Attorney, Office of
                       Immigration Litigation, United
                       States Department of Justice,
                       Washington, D.C.

    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 DISMISSED in part, and DENIED in part.

    Bing Xie, a native and citizen of the People’s Republic

of China, seeks review of an October 10, 2008 order of the BIA

reversing the May 3, 2007 decision of Immigration Judge (“IJ”)

Michael W. Straus and denying her application for relief under

the Convention Against Torture (“CAT”).     In re Bing Xie, No.

A097 670 218 (B.I.A. Oct. 10, 2008), rev’g No. A097 670 218

(Immig. Ct. Hartford May 3, 2007).    We assume the parties’

familiarity with the underlying facts and procedural history

in this case.

    Under the circumstances of this case, we review only the


    1
      Petitioner moves to allow two students, Brian Soucek and
Daniel Winik, to appear before the Court. However, as counsel
concedes, these students do not yet have the four semesters of
full-time legal study required in order to appear.      See 2d
Cir. Local Rule 46.1(e)(3)(A).      The motion is therefore
denied.

                              2
decision of the BIA.        See Yan Chen v. Gonzales, 417 F.3d 268,

271 (2d Cir. 2005).          We review de novo questions of law,

including determinations as to what evidence will suffice to

sustain an applicant’s burden of proof.              See Salimatou Bah v.

Mukasey, 529 F.3d 99, 110 (2d Cir. 2008); Jin Shui Qiu v.

Ashcroft, 329 F.3d 140, 146 n.2 (2d Cir. 2003).

    1.   Jurisdiction

    Under 8 U.S.C. §§ 1252(a)(2)(C) and (D), our jurisdiction

to review final orders of removal against aliens, such as Xie,

who are removable by reason of having been convicted of an

aggravated    felony   is    limited    to   constitutional       claims    or

questions of law.      See Gertsenshteyn v. U.S. Dep’t of Justice,

544 F.3d 137, 142 (2d Cir. 2008); Vargas-Sarmiento v. U.S.

Dep’t of Justice, 448 F.3d 159, 163 (2d Cir. 2006).                       This

court has not yet decided whether 8 U.S.C. § 1252(a)(2)(C)’s

jurisdictional    restrictions     also      apply    to   CAT   claims    for

deferral of removal.        See De La Rosa v. Holder, 598 F.3d 103,

107 (2d Cir. 2010).      We need not do so here, however, as Xie’s

appeal presents only questions of law.

    2.   Xie’s Failure to Demonstrate a Likelihood of Torture

         a.     Official Acquiescence

    Xie argues that the BIA erred as a matter of law in


                                    3
concluding    that        she        failed     to    demonstrate        official

acquiescence in her torture at the hands of “rogue agents” of

the Public Security Bureau.               See 8 C.F.R. § 1208.18(a)(1).

Specifically, she faults the BIA’s (1) insistence upon central

government   acquiescence            without    regard    to    whether      local

officials might acquiesce in her torture, and (2) failure to

recognize a presumption that infliction of severe pain or

suffering by rogue public officials constitutes torture.                           We

are not persuaded.

    The BIA concluded that “the record evidence does not show

that the Chinese government is willfully blind to the conduct

of such rogue agents,” referencing the standard set forth in

Khouzam v. Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004).                       In re

Bing Xie, No. A097 670 218, at 2.                    We do not construe the

BIA’s   reference    to    the       “Chinese   government”     to    limit       its

analysis to the central government alone, particularly in

light of the BIA’s citation to Khouzam’s holding that torture

requires   only   that     some       “government     officials      know    of    or

remain willfully blind to an act and thereafter breach their

legal   responsibility          to    prevent    it.”     361     F.3d      at    171

(emphasis added).

    Further, the record does not warrant a presumption of


                                         4
official willful blindness to acts of torture by rogue agents

of the Public Security Bureau.               Here, there was no finding of

routine torture for seemingly official purposes as in Khouzam,

See    id.   at     169-71.        Rather,    Xie   submits,        without    any

historical proof, that the leader of the smuggling operation

in which she participated will arrange to have her tortured on

account of a particular unpaid debt.                   On this record, we

detect no legal error in the BIA’s conclusion that Xie failed

to    adduce      evidence    sufficient       to   support    her     claim    of

government        acquiescence     in   the   feared   conduct,       should    it

occur. 2

             b.     Likelihood of Torture

      Xie submits that the BIA erred in applying an overly

stringent         standard    in    concluding      that      she    failed     to

demonstrate a likelihood that she will be tortured if removed

to China.      Specifically, she submits that the BIA improperly



      2
       De La Rosa v. Holder, 598 F.3d 103, warrants no
different conclusion. Unlike in De La Rosa, the BIA here did
not confront evidence that someone was intent on killing Xie
or that the Chinese government was powerless to prevent such
a killing. 598 F.3d at 110. Further, insofar as Xie argues
for the first time in her March 2, 2010 28(j) letter that the
BIA conducted impermissible de novo review of the IJ’s factual
findings on issues other than Xie’s credibility, we deem the
argument waived and decline to address it. See Shunfu Li v.
Mukasey, 529 F.3d 141, 146 (2d Cir. 2008); United States v.
Bortnovsky, 820 F.2d 572, 575 (2d Cir. 1987).
                              5
based      its    conclusion    on     her   failure      to    demonstrate          that

similarly situated individuals – i.e., other “repatriated,

convicted alien smuggler[s],” In re Bing Xie, No. A097 670

218, at 3 – are tortured in China. The record does not support

this claim.

       The BIA held that Xie failed to carry “her burden of

showing that it is more likely than not that she will be

tortured         if   removed    to     China,”     id.        (citing        8    C.F.R.

§ 1208.16(c)(2)), thereby citing the appropriate standard.

Although Xie testified that she feared torture and presented

evidence         indicating     that     participants          in    the      smuggling

operation were connected with the public security office, she

offered no evidence to demonstrate that the feared torture was

likely.         It was in this context that the BIA focused on the

lack       of    comparative     evidence        that     others         in       similar

circumstances had been tortured.                  See Wang v. Ashcroft, 320

F.3d 130, 144 (2d Cir. 2003) (upholding denial of CAT relief

based on lack of evidence that military deserters generally

are     tortured      in   China       despite    credible          testimony        that

petitioner (1) was beaten following first desertion attempt

and (2) was threatened with death if he deserted again). 3


       3
      Niang v. Mukasey, 511 F.3d 138 (2d Cir. 2007), cited by
petitioner for the proposition that the BIA must provide
                              6
Accordingly, we identify no legal error in the BIA’s standard

of review.

    3.    The Failure      to    Refer   Petition   to   a   Three-Member
          Panel

    Xie argues that the BIA violated its own regulations

under 8 C.F.R. § 1003.1(e) when it vacated the decision of the

IJ in a one-member order as opposed to referring the case for

decision by a three-member panel.            We lack jurisdiction to

review this discretionary administrative determination.                See

Guyadin   v.   Gonzales,   449    F.3d   465,   469-70(2d    Cir.   2006);

Kambolli v. Gonzales, 449 F.3d 454, 461 (2d Cir. 2006).               That

the BIA reversed, rather than affirmed, the IJ’s decision

warrants no different conclusion.         See 8 C.F.R. § 1003.1(e)(6)

(instructing that case “may be assigned for review by a three-

member panel” if any of six specified circumstances, including

need to reverse IJ, is present) (emphasis added).                   In any

event, the challenged decision was issued pursuant to remand

from this court for reconsideration of the BIA’s 2007 reversal

of the IJ, which was issued by a three-member panel.             See Bing


specific reasons for relying on the absence of corroborative
evidence, is inapposite. Here, unlike in Niang, the agency
made no adverse credibility determination and did not seek
corroboration of otherwise credible testimony; rather the BIA
accepted Xie’s fear of mistreatment but concluded that it was
insufficient to demonstrate a likelihood of torture.    In re
Bing Xie, No. A097 670 218, at 3.
                              7
Xie   v.   Mukasey,      No.     07-4217-ag            (2d    Cir.       May    28,    2008)

(stipulation and order).             Accordingly, this portion of Xie’s

petition is dismissed.

      4.   Conclusion

      Because     we    detect      no    error    in        the   BIA’s       dispositive

determination      that    Xie      did    not    establish          a    likelihood      of

torture    if    returned      to    China,       we    decline          to    address   her

challenge to the IJ’s determination that she was convicted of

a “particularly serious crime” barring her from withholding of

removal         under     the        CAT         pursuant            to         8     U.S.C.

§ 1231(b)(3)(B)(ii).

      For the foregoing reasons, the petition for review is

DISMISSED in part and DENIED in part.                         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.

The pending motion for leave to allow two law students to

appear is DENIED in accordance with Local Rule 46.1(e)(3)(A).

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).

                                          FOR THE COURT:
                                          Catherine O’Hagan Wolfe, Clerk




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