10-471-ag

Ma v. Holder

BIA

Abrams, IJ

A088 380 292

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 day of December, two thousand ten. st

5

6 PRESENT:

7 RICHARD C. WESLEY,

8 DEBRA ANN LIVINGSTON,

9 GERARD E. LYNCH,

10 Circuit Judges. 

11

12 _______________________________________

13

14 SHOU CHENG MA,

15 Petitioner, 

16

17 v. 10-471-ag

18 NAC

19 ERIC H. HOLDER, JR., UNITED STATES 

20 ATTORNEY GENERAL

21 Respondent.

22

23 _____________________________________

24

25 FOR PETITIONER: Lewis Hu, New York, New York.

26

27 FOR RESPONDENT: Tony West, Assistant Attorney

28 General; Keith I. McManus, Senior

29 Litigation Counsel; R. Alexander

30 Goring, Trial Attorney, Office of
2

1 Immigration Litigation, Civil

2 Division, United States Department

3 of Justice, 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 DISMISSED in part and DENIED in part.

9 Petitioner Shou Cheng Ma, a native and citizen of

10 China, seeks review of a January 21, 2010, decision of the

11 BIA affirming the July 23, 2008, decision of Immigration

12 Judge (“IJ”) Steve R. Abrams denying Ma’s application for

13 asylum, withholding of removal, and relief under the

14 Convention Against Torture (“CAT”). In re Shou Cheng Ma,

15 No. A088 380 292 (B.I.A. Jan. 21, 2010), aff’g No. A088 380

16 292 (Immig. Ct. N.Y. City July 23, 2008). 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 the

20 IJ’s decision as modified by the BIA decision, i.e., minus

21 the arguments for denying relief that were not considered by

22 the BIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 426

23 F.3d 520, 522 (2d Cir. 2005). The applicable standards of

24 review are well-established. See 8 U.S.C. § 1252(b)(4)(B);
3

1 Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). 

2 As an initial matter, we lack jurisdiction to consider

3 Ma’s challenges to the IJ’s denial of his applications for

4 asylum and withholding of removal. Under 8 U.S.C. 

5 § 1252(d)(1), we “may review a final order of removal only

6 if . . . the alien has exhausted all administrative remedies

7 available to the alien as of right.” This jurisdictional

8 rule is absolute with respect to the requirement that on

9 appeal to the BIA, the alien must raise each category of

10 relief subsequently raised in this Court. See Karaj v.

11 Gonzales, 462 F.3d 113, 119 (2d Cir. 2006) (citing Beharry

12 v. Ashcroft, 329 F.3d 51, 59 (2d Cir. 2003)). Here, Ma

13 failed to challenge the IJ’s denial of asylum or withholding

14 of removal on appeal to the BIA. Thus, as a statutory

15 matter, we are without jurisdiction to consider any

16 challenge to the denial of those forms of relief and the

17 petition for review will be dismissed to this extent. 

18 See 8 U.S.C. § 1252(d)(1).

19 Substantial evidence supports the agency’s conclusion

20 that Ma failed to demonstrate a likelihood of torture upon

21 his return to China. The harm Ma suffered in the past does

22 not alone create a presumption that he will more likely than
4

1 not be tortured in the future. See Ramsameachire v.

2 Ashcroft, 357 F.3d 169, 185 (2d Cir. 2004) (providing that

3 CAT relief requires a showing of a future likelihood of

4 torture, not only past torture). Moreover, as the agency

5 found, there is no record evidence indicating that Ma will

6 more likely than not be tortured if he returns to China. 

7 Following his initial abuse, Ma remained safe in China for

8 nearly five years without incident, demonstrating that the

9 Chinese government had no interest in torturing him. In

10 addition, as the agency found, the Chinese government no

11 longer has a motivation to torture Ma to obtain information

12 about Falun Gong practitioners because Ma has not been head

13 of his village since 2001, and has been outside of China

14 since 2006, and thus has no first-hand knowledge about Falun

15 Gong practitioners. Finally, Ma did not submit any

16 particularized evidence demonstrating a likelihood that he

17 will be tortured if, as he claims is likely, he is arrested

18 in China for having spent time in the United States. See Mu

19 Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 157-60 (2d

20 Cir. 2005) (holding that beyond generalized country

21 conditions reports stating that some Chinese prisoners have

22 been tortured, an applicant for CAT relief must submit
5

1 particularized evidence demonstrating that he is likely to

2 be subject to torture in Chinese prisons). Thus, the record

3 does not compel the conclusion that Ma established a

4 likelihood of torture and the agency did not err in denying

5 Ma’s application for CAT relief. See Ramsameachire, 357

6 F.3d at 185; Mu Xiang Lin, 432 F.3d at 157-60. 

7 For the foregoing reasons, the petition for review is

8 DISMISSED in part and DENIED in part. As we have completed

9 our review, any stay of removal that the Court previously

10 granted in this petition is VACATED, and any pending motion

11 for a stay of removal in this petition is DISMISSED as moot. 

12 Any pending request for oral argument in this petition is

13 DENIED in accordance with Federal Rule of Appellate

14 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

15 FOR THE COURT: 

16 Catherine O’Hagan Wolfe, Clerk

17

18