                                                                             FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                         June 6, 2011
                       UNITED STATES COURT OF APPEALS
                                                                     Elisabeth A. Shumaker
                                FOR THE TENTH CIRCUIT                    Clerk of Court



    LI XIN JIE,

                  Petitioner,

    v.                                                      No. 10-9586
                                                        (Petition for Review)
    ERIC H. HOLDER, JR.,
    United States Attorney General,

                  Respondent.


                                ORDER AND JUDGMENT *


Before O’BRIEN, ANDERSON, and HOLMES, Circuit Judges.



         Pro se petitioner Li Xin Jie, a native and citizen of China, petitions this

court for review of the decision of the Board of Immigration Appeals (BIA)

dismissing his appeal from a decision of an immigration judge (IJ) denying his

application for asylum, withholding of removal, and protection under the

Convention Against Torture, and ordering him removed to China. At the agency


*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
level, petitioner argued that he would be persecuted in China (1) because of his

homosexuality or bisexuality, and (2) for violating China’s population control

policies by having two United States citizen children. The BIA held as to the first

contention that petitioner had failed to “specifically allege[]” that he had

previously been persecuted in China due to his sexual orientation and that he had

failed to establish a well-founded fear of future persecution on this ground.

Admin. R. at 4. Looking mainly at a United States Department of State report,

the BIA held that “the record does not establish official persecution or evidence

of private persecution [of homosexuals] that the government is unable or

unwilling to control.” Id. As to the second contention, the BIA held that

petitioner’s

      fear that he will be sterilized in China because he violated the single
      child policy is unsupported by the record because, in a separate
      proceeding, an Immigration Judge granted his wife’s claim for
      withholding of removal. Given that the [petitioner’s] wife has not
      been ordered removed to China, his United States citizen children do
      not have to return there with her. As a result, the [petitioner’s]
      children would not be counted against him for purposes of the family
      planning program if he is returned to China.

Id. at 4-5. The BIA dismissed petitioner’s appeal.

      Petitioner has appealed the BIA’s dismissal.

            The scope of our review is governed by the form of the BIA
      decision. Where[, such as here,] the BIA issues its own opinion
      dismissing the appeal in a single-member decision pursuant to
      8 C.F.R. § 1003.1(e)(5), the order constitutes the final order of
      removal under 8 U.S.C. § 1252(a).


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Ritonga v. Holder, 633 F.3d 971, 974 (10th Cir. 2011) (citations omitted)

(internal quotation marks omitted).

            In our review of the agency’s decision, we decide purely legal
      questions de novo. Agency findings of fact are reviewed under the
      substantial evidence standard. Under this standard of review, agency
      findings of fact are conclusive unless any reasonable adjudicator
      would be compelled to conclude to the contrary. In this circuit, the
      determination whether an alien has demonstrated persecution is a
      question of fact.

Id. at 974 (citations omitted) (internal quotation marks omitted).

      Petitioner first argues that he would be persecuted because of his

homosexuality or bisexuality if he were returned to China. He alleges:

      Police was looking for me to put me into mental hospital for being a
      gay. I was discriminated in China for being a gay. The situation of
      being a gay is very miserable in China because they are [not] treated
      as a normal human being. In China being gay is considered a form
      of mental disease and abnormal behavior that brings bad influence to
      the society, while I thought being gay, in social law, was the freedom
      of human rights and should not be put into mental hospital. I would
      rather die than to be put into mental hospital.

Pet’r Br. at 5. Petitioner also claims that the police closed down his cosmetics

shop because he was gay. Id.

      Petitioner asserts that the BIA erred in concluding that he would not be

imprisoned due to his homosexuality if returned to China. But he does not

address the BIA’s determination that his testimony that he would be imprisoned in

China because of his homosexuality or bisexuality was not consistent with the

State Department report on China’s treatment of homosexuals or the BIA’s


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conclusion that the documentary evidence submitted to support his claim of

pending imprisonment was entitled to “little weight.” Admin. R. at 4. Petitioner

presented a document purportedly from the “Changle City Village Resident

Committee,” stating petitioner would be committed to a mental hospital if he

returned due to his homosexuality. Id. The BIA noted that the document was

unsigned and the author unidentified, it was not authenticated, and it appeared to

have been obtained for the purpose of the hearing. Id. Petitioner’s brief to this

court merely repeats in a conclusory manner his assertion that the police wanted

to put him in a mental hospital for being gay and that they closed down his

cosmetic shop after they could not find him. We hold the BIA’s determination

that petitioner had not established a well-founded fear of persecution based on

sexual orientation if returned to China is supported by substantial evidence.

      As noted above, petitioner also argued to the agency that he would be

persecuted in China for violating China’s population control policies by having

two United States citizen children. His only reference to this assertion on appeal

is the claim that “I will be sterilized if I return back [to] China” and that he wants

to have another girl. Pet’r Br. at 5. Petitioner makes no argument supporting this

assertion. Most importantly, he does not contest the BIA’s determination that his

citizen children, because they do not have to leave the United States, would not

be counted against him for the purposes of China’s population control policies.

Although we must liberally construe petitioner’s pro se brief, see Hall v. Bellmon,

                                          -4-
935 F.2d 1106, 1110 (10th Cir. 1991), we will not craft petitioner’s arguments for

him where his allegations are conclusory in nature. Id.

      Finally, we note that the majority of petitioner’s brief to this court concerns

not the arguments discussed above but, instead, his struggle reconciling his sexual

orientation with his deep Christian beliefs, and his assertion that he would be

persecuted if he were returned to China on the basis of those Christian beliefs.

But petitioner never raised religion as a ground for asylum in the administrative

proceedings and we may not address it for the first time here. See 8 U.S.C.

§ 1252(d)(1) (requiring an alien to exhaust all administrative remedies available

to him prior to court review of a final removal order); Garcia-Carbajal v. Holder,

625 F.3d 1233, 1237 (10th Cir. 2010) (holding that “[t]o satisfy § 1252(d)(1), an

alien must present the same specific legal theory to the BIA before he or she may

advance it in court”).

      The petition for review is DENIED.


                                                    Entered for the Court



                                                    Stephen H. Anderson
                                                    Circuit Judge




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