         10-471-ag
         Ma v. Holder
                                                                                      BIA
                                                                               Abrams, IJ
                                                                             A088 380 292
                          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 1 st day of December, two thousand ten.
 5
 6       PRESENT:
 7                      RICHARD C. WESLEY,
 8                      DEBRA ANN LIVINGSTON,
 9                      GERARD E. LYNCH,
10                            Circuit Judges.
11
12       _______________________________________
13
14       SHOU CHENG MA,
15                Petitioner,
16
17                       v.                                     10-471-ag
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL
21                Respondent.
22
23       _____________________________________
24
25       FOR PETITIONER:               Lewis Hu, New York, New York.
26
27       FOR RESPONDENT:               Tony West, Assistant Attorney
28                                     General; Keith I. McManus, Senior
29                                     Litigation Counsel; R. Alexander
30                                     Goring, Trial Attorney, Office of
1                            Immigration Litigation, Civil
2                            Division, United States Department
3                            of Justice, Washington, D.C.
4
5        UPON DUE CONSIDERATION of this petition for review of a

6    Board of Immigration Appeals (“BIA”) decision, it is hereby

7    ORDERED, ADJUDGED, AND DECREED that the petition for review

8    is DISMISSED in part and DENIED in part.

9        Petitioner Shou Cheng Ma, a native and citizen of

10   China, seeks review of a January 21, 2010, decision of the

11   BIA affirming the July 23, 2008, decision of Immigration

12   Judge (“IJ”) Steve R. Abrams denying Ma’s application for

13   asylum, withholding of removal, and relief under the

14   Convention Against Torture (“CAT”).       In re Shou Cheng Ma,

15   No. A088 380 292 (B.I.A. Jan. 21, 2010), aff’g No. A088 380

16   292 (Immig. Ct. N.Y. City July 23, 2008).       We assume the

17   parties’ familiarity with the underlying facts and

18   procedural history in this case.

19       Under the circumstances of this case, we review the

20   IJ’s decision as modified by the BIA decision, i.e., minus

21   the arguments for denying relief that were not considered by

22   the BIA.   See Xue Hong Yang v. U.S. Dep’t of Justice, 426

23   F.3d 520, 522 (2d Cir. 2005).       The applicable standards of

24   review are well-established.    See 8 U.S.C. § 1252(b)(4)(B);


                                     2
1    Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

2        As an initial matter, we lack jurisdiction to consider

3    Ma’s challenges to the IJ’s denial of his applications for

4    asylum and withholding of removal.     Under 8 U.S.C.

5    § 1252(d)(1), we “may review a final order of removal only

6    if . . . the alien has exhausted all administrative remedies

7    available to the alien as of right.”     This jurisdictional

8    rule is absolute with respect to the requirement that on

9    appeal to the BIA, the alien must raise each category of

10   relief subsequently raised in this Court.     See Karaj v.

11   Gonzales, 462 F.3d 113, 119 (2d Cir. 2006) (citing Beharry

12   v. Ashcroft, 329 F.3d 51, 59 (2d Cir. 2003)).     Here, Ma

13   failed to challenge the IJ’s denial of asylum or withholding

14   of removal on appeal to the BIA.     Thus, as a statutory

15   matter, we are without jurisdiction to consider any

16   challenge to the denial of those forms of relief and the

17   petition for review will be dismissed to this extent.

18   See 8 U.S.C. § 1252(d)(1).

19       Substantial evidence supports the agency’s conclusion

20   that Ma failed to demonstrate a likelihood of torture upon

21   his return to China.   The harm Ma suffered in the past does

22   not alone create a presumption that he will more likely than


                                   3
1    not be tortured in the future.     See Ramsameachire v.

2    Ashcroft, 357 F.3d 169, 185 (2d Cir. 2004) (providing that

3    CAT relief requires a showing of a future likelihood of

4    torture, not only past torture).     Moreover, as the agency

5    found, there is no record evidence indicating that Ma will

6    more likely than not be tortured if he returns to China.

7    Following his initial abuse, Ma remained safe in China for

8    nearly five years without incident, demonstrating that the

9    Chinese government had no interest in torturing him.      In

10   addition, as the agency found, the Chinese government no

11   longer has a motivation to torture Ma to obtain information

12   about Falun Gong practitioners because Ma has not been head

13   of his village since 2001, and has been outside of China

14   since 2006, and thus has no first-hand knowledge about Falun

15   Gong practitioners.   Finally, Ma did not submit any

16   particularized evidence demonstrating a likelihood that he

17   will be tortured if, as he claims is likely, he is arrested

18   in China for having spent time in the United States.      See Mu

19   Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 157-60 (2d

20   Cir. 2005) (holding that beyond generalized country

21   conditions reports stating that some Chinese prisoners have

22   been tortured, an applicant for CAT relief must submit


                                   4
1    particularized evidence demonstrating that he is likely to

2    be subject to torture in Chinese prisons).   Thus, the record

3    does not compel the conclusion that Ma established a

4    likelihood of torture and the agency did not err in denying

5    Ma’s application for CAT relief.   See Ramsameachire, 357

6    F.3d at 185; Mu Xiang Lin, 432 F.3d at 157-60.

7        For the foregoing reasons, the petition for review is

8    DISMISSED in part and DENIED in part.   As we have completed

9    our review, any stay of removal that the Court previously

10   granted in this petition is VACATED, and any pending motion

11   for a stay of removal in this petition is DISMISSED as moot.

12   Any pending request for oral argument in this petition is

13   DENIED in accordance with Federal Rule of Appellate

14   Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

15                              FOR THE COURT:
16                              Catherine O’Hagan Wolfe, Clerk
17
18




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