Rui Zhong Qiu v. Holder

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 7