          08-2313-ag
          Qiu v. Holder
                                                                                                   BIA
                                                                                              Weisel, IJ
                                                                                           A095 914 324
                               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 March, two thousand ten                         .
 5
 6        PRESENT:
 7                 ROSEMARY S. POOLER,
 8                 BARRIGNTON D. PARKER,
 9                 RICHARD C. WESLEY,
10                          Circuit Judges.
11        _______________________________________
12
13        RUI ZHONG QIU,
14                 Petitioner,
15
16                            v.                                         08-2313-ag
17                                                                       NAC
18        ERIC H. HOLDER, JR., 1 UNITED STATES
19        ATTORNEY GENERAL,
20                 Respondent.
21        _______________________________________
22        FOR PETITIONER:         Rui Zhong Qiu, Pro Se.
23




                          1
                    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.
1    FOR RESPONDENT:           Tony West, Assistant Attorney
2                              General; Linda S. Wernery, Assistant
3                              Director; Gerald M. Alexander, Trial
4                              Attorney, Office of Immigration
5                              Litigation, United States Department
6                              of Justice, Washington, D.C.
7
8        UPON DUE CONSIDERATION of this petition for review of a

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

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

11   is DENIED, in part, and DISMISSED, in part.

12       Rui Zhong Qiu, a native and citizen of China, seeks

13   review of an April 15, 2008 order of the BIA affirming the

14   May 25, 2006 decision of Immigration Judge (“IJ”) Robert D.

15   Weisel, which denied his application for asylum, withholding

16   of removal, and relief under the Convention Against Torture

17   (“CAT”).     In re Rui Zhong Qiu, No. A095 914 324 (B.I.A. Apr.

18   15, 2008), aff’g No. A095 914 324 (Immig. Ct. N.Y. City May

19   25, 2006).     We assume the parties’ familiarity with the

20   underlying facts and procedural history in this case.

21       When the BIA does not expressly “adopt” the IJ’s

22   decision, but its brief opinion closely tracks the IJ’s

23   reasoning, the Court may consider both the IJ’s and the

24   BIA’s opinions “for the sake of completeness.”     Zaman v.

25   Mukasey, 514 F.3d 233, 237 (2d Cir. 2008).     We review the

26   agency’s factual findings under the substantial evidence

                                     2
1    standard.      8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S.

2    Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir. 2007).

3    We review de novo questions of law and the application of

4    law to undisputed fact.      See Salimatou Bah v. Mukasey, 529

5    F.3d 99, 110 (2d Cir. 2008).

6    I.    Asylum

7           Title 8, Section 1158(a)(3) of the United States Code

8    provides that no court shall have jurisdiction to review the

9    agency’s finding that an asylum application was untimely

10   under 8 U.S.C. § 1158(a)(2)(B), or its finding of neither

11   changed nor extraordinary circumstances excusing the

12   untimeliness under 8 U.S.C. § 1158(a)(2)(D) .

13   Notwithstanding that provision, however, this Court retains

14   jurisdiction to review constitutional claims and “questions

15   of law.”    8 U.S.C. § 1252(a)(2)(D). Because Qiu has raised

16   neither a constitutional claim nor a question of law, we

17   lack jurisdiction to review his challenge to the agency’s

18   denial of his application for asylum .     8 U.S.C.

19   § 1158(a)(3).      We thus proceed to review Qiu’s challenge to

20   the agency’s denial of his application for withholding of

21   removal and CAT relief.

22   II.   Withholding of Removal


                                      3
1        A.      Family Planning

2        The agency reasonably concluded that Qiu failed to

3    demonstrate his eligibility for withholding of removal to

4    the extent his claim was based on his ex-wife’s forced

5    abortion.     See Shi Liang Lin v. U.S. Dep’t of Justice, 494

6    F.3d 296, 306 (2d Cir. 2007) (en banc) (providing that any

7    alleged persecution must be “personally experienced” if it

8    is to form the basis of relief).     Qiu has not alleged that

9    he engaged in any form of resistance that would render him

10   eligible for relief.     See Matter of S-L-L-, 24 I&N Dec. 1,

11   10 (BIA 2006).

12       Nor did the agency err by concluding that because Qiu

13   is unmarried, any claim that he would face future

14   persecution on account of possible future violations of the

15   family planning policy would be too speculative to merit

16   relief.     See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d

17   Cir. 2005) (holding that, absent solid support in the record

18   for the petitioner’s assertion that he would be subjected to

19   persecution, his fear was “speculative at best”).

20       B.      Falun Gong

21       The agency also reasonably denied Qiu’s withholding of

22   removal claim to the extent it was based on his recent


                                     4
1    involvement with Falun Gong.    While the BIA noted that Falun

2    Gong practitioners may face mistreatment in China, it found

3    insufficient evidence in the record upon which to conclude

4    that Qiu was a “dedicated” practitioner who would come to

5    the attention of authorities.       We find no error in this

6    regard.   See Hongsheng Leng v. Mukasey, 528 F.3d 135, 143

7    (2d Cir. 2008) (“Put simply, to establish a well-founded

8    fear of persecution in the absence of any evidence of past

9    persecution, an alien must make some showing that

10   authorities in his country of nationality are either aware

11   of his activities or likely to become aware of his

12   activities”).   Qiu’s argument that the agency neglected to

13   consider record evidence detailing the mistreatment of Falun

14   Gong practitioners is unavailing.       The BIA did not dispute

15   the existence of such mistreatment; rather, it found that

16   Qiu was not likely to be subjected to persecution because no

17   one in China knew he practiced Falun Gong.       In any event, we

18   “presume that [the agency] has taken into account all of the

19   evidence before [it], unless the record compellingly

20   suggests otherwise.”   Xiao Ji Chen v. U.S. Dep’t of Justice,

21   471 F.3d 315, 337 n.17 (2d Cir. 2006).

22       Therefore, because the agency reasonably found that Qiu

23   failed to demonstrate that it was more likely than not that
                                     5
1    he would face persecution if returned to China, it

2    reasonably denied his application for withholding of

3    removal.   See Manzur, 494 F.3d at 289.

4    III. CAT Relief

5        Because Qiu was unable to show the objective likelihood

6    of persecution needed to make out a withholding of removal

7    claim based on either his family planning or Falun Gong

8    claims, he was necessarily unable to meet the higher

9    standard required to succeed on a claim for CAT relief.       See

10   Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006) ; Kyaw

11   Zwar Tun v. INS, 445 F.3d 554, 567 (2d Cir. 2006).       To the

12   extent Qiu’s CAT claim was based on his alleged illegal

13   departure, it is well-settled that the agency does not err

14   in finding that a petitioner is not “entitled to CAT

15   protection based solely on the fact that he is part of the

16   large class of persons who have illegally departed China.”

17   See Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 160

18   (2d Cir. 2005).   Even assuming that Qiu left China

19   illegally, the agency did not err in finding that he failed

20   to provide the type of particularized evidence necessary to

21   demonstrate eligibility for CAT relief.    See id.

22        For the foregoing reasons, the petition for review is

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

                                   6
1   completed our review, the pending motion for a stay of

2   removal in this petition is DISMISSED as moot.

3                              FOR THE COURT:
4                              Catherine O’Hagan Wolfe, Clerk
5
6
7




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