     06-0012-ag
     Xu v. Holder
                                                                                              BIA
                                                                                       Bukszpan, IJ
                                                                                      A078 713 428
                          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 6 th day of January,                  two thousand ten.

     PRESENT:
              RALPH K. WINTER,
              PIERRE N. LEVAL,
              REENA RAGGI,
                    Circuit Judges.
     _______________________________________

     ZHE XU,
                        Petitioner,
                         v.                                         06-0012-ag
                                                                    NAC
     ERIC H. HOLDER, JR., UNITED STATES
     ATTORNEY GENERAL, 1
              Respondent.
     ______________________________________




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               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:        Thomas V. Massucci, New York, New
                       York.

FOR RESPONDENT:        Catherine L. Hanaway, United States
                       Attorney, Eastern District of
                       Missouri; Wesley Wedemeyer,
                       Assistant United States Attorney;
                       Mollie R. Grossman, Law Student
                       Intern, St. Louis, Missouri.

    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 DENIED, in part, and DISMISSED, in part.

    Petitioner Zhe Xu, a native and citizen of the People’s

Republic of China, seeks review of a December 13, 2005 order

of the BIA affirming the February 9, 2005 decision of

Immigration Judge (“IJ”) Joanna Miller Bukszpan

pretermitting Xu’s application for asylum and denying his

application for withholding of removal and relief under the

Convention Against Torture (“CAT”).    In re Zhe Xu, No. A078

713 428 (B.I.A. Dec. 13, 2005), aff’g No. A078 713 428

(Immig. Ct. N.Y. City Feb. 9, 2005).    We assume the parties’

familiarity with the underlying facts and procedural history

in this case.

    We review the agency’s factual findings under the

substantial evidence standard.   8 U.S.C. § 1252(b)(4)(B);

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see also Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d

281, 289 (2d Cir. 2007).   However, we review de novo

questions of law and the application of law to undisputed

fact. See, e.g., Salimatou Bah v. Mukasey, 529 F.3d 99, 110

(2d Cir. 2008).

I.    Asylum

      We lack jurisdiction to review the agency’s finding

that an asylum application was untimely under 8 U.S.C.

§ 1158(a)(2)(B), or that such untimeliness was not excused

by changed or extraordinary circumstances under 8 U.S.C.

§ 1158(a)(2)(D).   See 8 U.S.C. § 1158(a)(3).   We

nevertheless retain jurisdiction to review constitutional

claims and questions of law.   See 8 U.S.C. § 1252(a)(2)(D).

To the extent that Xu challenges the decision to pretermit

his asylum claim because he failed to meet the one-year

filing deadline or demonstrate extraordinary circumstances

excusing the delay, we lack jurisdiction and therefore

dismiss the petition for review.

II.   Withholding of Removal

          A.   Claim Based on Exposure of Police Corruption

      The agency concluded that Xu failed to establish a

nexus between the threats he received and a protected ground

because he could not identify who made the threats and


                               3
because the threats did not include any reference to his

investigation to expose police corruption.       See 8 C.F.R.

§ 1208.16(b)(1); see also Yueqing Zhang v. Gonzales, 426

F.3d 540, 545 (2d Cir. 2005).       Xu now argues that the

agency’s nexus analysis is flawed because it failed to

consider both the motives of his alleged persecutors and

that his wife was harassed by Wang Li Jun, the individual

who was a target of his investigation.       Xu’s arguments are

without merit, as the record does not compel the conclusion

that Xu objected to police misconduct generally, rather than

merely the misconduct of isolated individuals, including

Wang Li Jun, or that Xu was persecuted on account of such

political opinion, rather than harassed for exposing

isolated incidents of corruption.       See Yueqing Zhang, 426

F.3d at 548 (asking “whether the persecutor was attempting

to suppress a challenge to the governing institution, as

opposed to a challenge to isolated, aberrational acts of

greed or malfeasance”); see also Siewe v. Gonzales, 480 F.3d

160, 168 (2d Cir. 2007) (“[W]here the evidence would support

either of competing inferences, the fact that this Court

might have drawn one inference does not entitle it to

overturn the [agency’s] choice of the other.” (internal

quotation marks and citation omitted, first alteration in



                                4
original)).

            B.   Claim Based on Political Activities in the
                 United States

    In the absence of past persecution, an alien can still

demonstrate eligibility for relief if he can show that it is

more likely than not he would face persecution on account of

a protected ground.      See 8 C.F.R. § 1208.16(b)(2).    Xu

asserts that the BIA erred in considering only whether the

Chinese government was currently aware of his activities on

behalf of the Chinese Democratic Justice Party (“CDJP”) in

the United States, rather than also determining whether the

government was likely to become aware of those activities.

We review the IJ’s decision as supplemented by the BIA

decision.     See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d

Cir. 2005).      Here, the IJ reasonably concluded that the

Chinese Government was not aware, or likely to become aware,

of Xu’s activities because the articles he published on

behalf of the CDJP were written under pseudonyms and because

he was a low-level member of the organization.      See

Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008)

(“[A]n alien must make some showing that authorities in his

country of nationality are either aware of his activities or

likely to become aware of his activities.”).      The record


                                 5
therefore supports the agency’s determination that Xu failed

to carry his burden of proof for withholding of removal.

    Finally, because Xu has failed meaningfully to

challenge the agency’s denial of CAT relief, we deem any

such challenge waived.   See Yueqing Zhang, 426 F.3d at 541

n.1, 545 n.7.

    For the foregoing reasons, the petition for review is

DISMISSED, in part, and DENIED, in part.   As we have

completed our review, 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

                            By:___________________________




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