     08-6055-ag
     Gao v. Holder
                                                                                     BIA
                                                                                  Bain, IJ
                                                                             A095 457 648
                              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 15 th day of April, two thousand ten.

     PRESENT:

              JOHN M. WALKER, JR.,
              BARRINGTON D. PARKER,
              REENA RAGGI,
                       Circuit Judges.
     _______________________________________

     MIN LIANG GAO, 1
              Petitioner,

                         v.                                  08-6055-ag
                                                             NAC
     UNITED STATES DEPARTMENT OF JUSTICE,
     ERIC H. HOLDER, Jr., U.S. ATTORNEY

     GENERAL, 2
              Respondent.
     _______________________________________



                     1
               The Clerk of the Court is directed to amend the
         official caption as set forth above.
                     2
               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.
FOR PETITIONER:           Yee Ling Poon, Robert Duk-Hwan Kim,
                          New York, New York.

FOR RESPONDENT:           Tony West, Assistant Attorney
                          General, Emily Anne Radford,
                          Assistant Director, Jesse Lloyd
                          Busen, Trial Attorney, Office of
                          Immigration Litigation, Civil
                          Division, United States Department
                          of Justice, Washington, D.C.

    UPON DUE CONSIDERATION of this petition for review of a

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

hereby ORDERED, ADJUDGED, AND DECREED that the petition for

review is DENIED.

    Petitioner Min Liang Gao, a native and citizen of the

People’s Republic of China, seeks review of a November 18,

2008 order of the BIA, vacating the January 31, 2005

decision of Immigration Judge (“IJ”) Terry Bain granting

Gao’s application for asylum and withholding of removal.       In

re Min Ling Gao, No. A095 457 648 (B.I.A. Nov. 18, 2008),

vacating No. A095 457 648 (Immig. Ct. N.Y. City, Jan. 31,

2005).   We assume the parties’ familiarity with the

underlying facts and procedural history of the case.

    Under the circumstances of this case, we review only

the BIA’s decision.     See Belortaja v. Gonzales, 484 F.3d

619, 623 (2d Cir. 2007).     The applicable standards of review

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

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

                                2
    In a prior order, we remanded Gao’s proceedings to the

BIA upon the Government’s concession that the BIA had

engaged in improper de novo factfinding in its March 22,

2007 order.     Gao argues that, on remand, the BIA made the

same error in its November, 18 2008 order.         We disagree.

The BIA accepted the facts found by the IJ but concluded, as

a matter of law, that Gao had not established either past

persecution or a well-founded fear of future persecution

based on the sterilization of his mother or on his status as

a “de facto orphan.”     Pet’r’s Br. at 22.    The BIA had the

authority to address these “questions of law” regarding

Gao’s eligibility for relief.       See 8 C.F.R.

§ 1003.1(d)(3)(ii); cf. Kambolli v. Gonzales, 449 F.3d 454,

457 (2d Cir. 2006) (evaluating de novo the agency’s “legal

conclusion” that a petitioner did not demonstrate a well-

founded fear of persecution based on “facts established in

the record”).

    Aside from arguing that the BIA’s conclusions rested on

impermissible factfinding, Gao does not challenge the merits

of the BIA’s nexus determination.       See 8 U.S.C.

§ 1101(a)(42).     Accordingly, Gao has waived any such

argument.     Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1,

545 n.7 (2d Cir. 2005).     To the extent Gao challenges the



                                3
BIA’s denial of his application for asylum and withholding

of removal, we therefore deny the petition for review.

    Furthermore, the BIA properly denied Gao’s claim for

relief under the Convention Against Torture (“CAT”). 3       Based

on the IJ’s factual findings, the BIA reasonably concluded

that Gao failed to present “particularized evidence” to meet

his burden in showing that he is likely to be tortured based

on his illegal departure from China.       Mu Xiang Lin v. U.S.

Dep’t of Justice, 432 F.3d 156, 158 (2d Cir. 2005).

    For the foregoing reasons, the petition for review is

DENIED.       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.       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(b).

                                FOR THE COURT:
                                Catherine O’Hagan Wolfe, Clerk




          3
        The Government argues that Gao failed to exhaust
  any challenge to the BIA’s denial of CAT relief. Even if
  exhaustion was required, the BIA excused Gao’s failure to
  exhaust by finding him ineligible for CAT relief. See
  Xian Tuan Ye v. U.S. Dep’t of Homeland Sec., 446 F.3d
  289, 296-97 (2d Cir. 2006); Waldron v. INS, 17 F.3d 511,
  515 n.7 (2d Cir. 1994).
                                  4
