10-471-ag

Ma v. Holder BIA Abrams, IJ A088 380 292 

### UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 

# SUM MARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 200 7 , 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 of2 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 1 0 China, seeks review of a January 21, 2010, decision of the 1 1 BIA affirming the July 23, 2008, decision of Immigration 1 2 Judge (“IJ”) Steve R. Abrams denying Ma’s application for 1 3 asylum, withholding of removal, and relief under the 1 4 Convention Against Torture (“CAT”). In re Shou Cheng Ma , 1 5 No. A088 380 292 (B.I.A. Jan. 21, 2010), aff’gNo. A088 380 1 6 292 (Immig. Ct. N.Y. City July 23, 2008). We assume the 1 7 parties’ familiarity with the underlying facts and 1 8 procedural history in this case. 1 9 Under the circumstances of this case, we review the 2 0 IJ’s decision as modified by the BIA decision, i.e., minus 2 1 the arguments for denying relief that were not considered by 2 2 the BIA. See Xue Hong Yang v. U.S. Dep’t of Justice , 426 2 3 F.3d 520, 522 (2d Cir. 2005). The applicable standards of 2 4 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 1 0 relief subsequently raised in this Court. See Karaj v. 11 Gonzales , 462 F.3d 113, 119 (2d Cir. 2006) (citing Beharry 1 2 v. Ashcroft , 329 F.3d 51, 59 (2d Cir. 2003)). Here, Ma 1 3 failed to challenge the IJ’s denial of asylum or withholding 1 4 of removal on appeal to the BIA. Thus, as a statutory 1 5 matter, we are without jurisdiction to consider any 1 6 challenge to the denial of those forms of relief and the 1 7 petition for review will be dismissed to this extent. 1 8 See8 U.S.C. § 1252(d)(1). 1 9 Substantial evidence supports the agency’s conclusion 2 0 that Ma failed to demonstrate a likelihood of torture upon 2 1 his return to China. The harm Ma suffered in the past does 2 2 not alone create a presumption that he will more likely than4 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 1 0 addition, as the agency found, the Chinese government no 1 1 longer has a motivation to torture Ma to obtain information 1 2 about Falun Gong practitioners because Ma has not been head 1 3 of his village since 2001, and has been outside of China 1 4 since 2006, and thus has no first-hand knowledge about Falun 1 5 Gong practitioners. Finally, Ma did not submit any 1 6 particularized evidence demonstrating a likelihood that he 1 7 will be tortured if, as he claims is likely, he is arrested 1 8 in China for having spent time in the United States. See Mu 1 9 Xiang Lin v. U.S. Dep’t of Justice , 432 F.3d 156, 157-60 (2d 2 0 Cir. 2005) (holding that beyond generalized country 2 1 conditions reports stating that some Chinese prisoners have 2 2 been tortured, an applicant for CAT relief must submit5 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.

For the foregoing reasons, the petition for review is 7 8 DISMISSED in part and DENIED in part. As we have completed 9 our review, any stay of removal that the Court previously 1 0 granted in this petition is VACATED, and any pending motion 1 1 for a stay of removal in this petition is DISMISSED as moot. 1 2 Any pending request for oral argument in this petition is 1 3 DENIED in accordance with Federal Rule of Appellate 1 4 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b). 1 5 FOR THE COURT: 1 6 Catherine O’Hagan Wolfe, Clerk 17 1 8