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
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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).
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