09-0800-ag
Li v. Holder
BIA
Van Wyke, IJ
A098 353 511
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 22 nd day of June, two thousand ten.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 JOHN M. WALKER, JR.,
10 GERARD E. LYNCH,
11 Circuit Judges.
12 _______________________________________
13
14 LING JIN LI,
15 Petitioner,
16
17 v. 09-0800-ag
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONER: Tina Howe, New York, New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General, Civil Division; Susan K.
28 Houser, Senior Litigation Counsel;
29 T. Bo Stanton, Attorney, Office of
1 Immigration Litigation, United
2 States Department of Justice,
3 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 DENIED.
9 Ling Jin Li, a native and citizen of the People’s
10 Republic of China, seeks review of a February 12, 2009,
11 order of the BIA, reversing and vacating the September 22,
12 2006, decision of Immigration Judge (“IJ”) William Van Wyke
13 to the extent it granted Li’s application for relief under
14 the Convention Against Torture (“CAT”). In re Ling Jin Li,
15 No. A098 353 511 (B.I.A. Feb. 12, 2009), rev’g No. A098 353
16 511 (Immig. Ct. N.Y. City Sept. 22, 2006). 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 only
20 the decision of the BIA. See Yan Chen v. Gonzales, 417 F.3d
21 268, 271 (2d Cir. 2005). The applicable standards of review
22 are well-established. See 8 U.S.C. § 1252(b)(4)(B); see
23 also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008).
24 Contrary to Li’s argument, the BIA did not err in
2
1 conducting a de novo review of whether he met his burden of
2 proof for CAT relief. The BIA has held that whether an
3 applicant has established a likelihood of torture upon his
4 removal is a “mixed question of fact and law, or a question
5 of ‘judgment,’” because it relates to “whether the ultimate
6 statutory requirement for establishing eligibility for
7 relief was met.” Matter of V-K-, 24 I. & N. Dec. 500, 502
8 (BIA 2008); see also 8 C.F.R. § 1003.1(d)(3)(ii) (“The Board
9 may review questions of law, discretion, and judgment and
10 all other issues in appeals from decisions of immigration
11 judges de novo.”). We accord “substantial deference” to an
12 agency’s interpretation of its own regulations, see Joaquin-
13 Porras v. Gonzales, 435 F.3d 172, 178 (2d Cir. 2006), and
14 find no error in the BIA’s interpretation of the applicable
15 standard of review as set forth in Matter of V-K-. Thus,
16 because the BIA applied the legal standard for CAT relief to
17 a set of uncontested facts, it acted within the scope of its
18 authority in conducting a de novo review of Li’s claim for
19 CAT relief. See Matter of V- K-, 24 I. & N. Dec. at 501-02.
20 In addition, we find that a reasonable fact-finder
3
1 would not be compelled to conclude that Li established his
2 eligibility for CAT relief. See Mu Xiang Lin v. Gonzales,
3 432 F.3d 156, 159-60 (2d Cir. 2005). We have held that in
4 order for an applicant to meet his burden of proving that he
5 will more likely than not be tortured upon removal, he must
6 show more than a generalized risk of torture or membership
7 in the “large class of persons who have illegally departed
8 China.” Id. Here, Li failed to present sufficient evidence
9 to show that he, in particular, would be singled out by
10 Chinese government officials for his illegal departure.
11 Accordingly, the BIA did not err in concluding that, while
12 “some individuals who left China illegally are imprisoned,
13 and . . . some human rights abuses may occur in Chinese
14 prisons . . . , such evidence does not establish that it is
15 ‘more likely than not’ that the respondent, in particular,
16 would be tortured upon his removal to China.” In re Ling
17 Jin Li, No. A098 353 511, slip op. at 2 (emphasis in
18 original); see Pierre v. Gonzales, 502 F.3d 109, 115-21 (2d
19 Cir. 2007) (holding that beyond evidence of inhumane prison
20 conditions, a CAT claimant must provide some evidence that
4
1 the authorities act with the specific intent to inflict
2 severe physical or mental pain or suffering on those
3 detained). We likewise find no error in the BIA’s
4 conclusion that “the evidence of record does not indicate
5 that abuse by snakeheads is so pervasive in China as to
6 establish that” Li would “more likely than not” be tortured
7 upon his removal to China. In re Ling Jin Li, No. A098 353
8 511, slip op. at 2.
9 For the foregoing reasons, the petition for review is
10 DENIED. As we have completed our review, any stay of
11 removal that the Court previously granted in this petition
12 is VACATED, and any pending motion for a stay of removal in
13 this petition is DISMISSED as moot. Any pending request for
14 oral argument in this petition is DENIED in accordance with
15 Federal Rule of Appellate Procedure 34(a)(2), and Second
16 Circuit Local Rule 34.1(b).
17 FOR THE COURT:
18
19 Catherine O’Hagan Wolfe, Clerk
20
21
22
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