UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ ZHIPENG ZENG, Petitioner,

v. WILLIAM P. BARR, United States Attorney General, Respondent. No. 19-9539 (Petition for Review)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HARTZ , PHILLIPS , and EID , Circuit Judges.

________________ _________________ Petitioner Zhipeng Zeng is a native and citiz en of China who seeks review of the denial by the Board of Immigration Appe als (BIA) of his application for asylum, withholding of removal, and protection u nder the Convention Against Torture (CAT). Exercising jurisdiction under 8 U.S.C. § 1252(a), we deny the petition for review.

* After examining the briefs and appellate r ecord, this panel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34. 1(G). The case is therefore ordered submitted without oral argument. This order and judg ment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### January 10, 2020 Christopher M. Wolpert Clerk of Court2 I. BACKGROUND Petitioner was admitted to the United Stat es as a nonimmigrant visitor. He filed his application for relief on July 3, 2013. An asylum officer denied his application and referred his case to an immigration judge (IJ ). The Department of Homeland Security then commenced removal proceedings agai nst Petitioner for remaining in the United States longer than permitted. See 8 U.S.C. § 1227(a)(1)(B). At his merits hearing Petitioner testified as follows: In March 2012 he received a notice from the demolition department of Jilin C ity in China that th e building he resided in with his mother was going to be demolishe d by May 1. He refused to move, though, until he received additional compensation, believ ing that the price he was offered was too low. The demolition department turned o ff the building’s utilities early in April. In the early morning of June 21, Petitioner went downstairs in his building and discovered about 100 people from the demolition department. They as ked him to vacate that same day. He replied that he still woul d not move without a be tter offer. When they would not allow him to leave the building, he went upstairs to call the police, who said they could not help him. He came downstairs again later th at morning and repeated that he would not move until he r eceived reasonable compensation. He was attacked with knives by five workers, resulting in his hosp italization for 28 days. He believed he was attacked because he “was strongly against this demolition policy fro m the government.” Certified Administrative Record (CAR) 170; see id . at 160 (describing the policy he opposed as “the government would try to occupy people’s lands by force”). Later a3 neighbor was also beaten, but he did not know the person and had never communicated with him. During Petitioner’s hospitaliza tion he and his mother r eceived threatening phone calls telling them not to involve the police or complain about the atta ck. Also during that time, the unit he shared with his mother was demolished. The two moved to a new home in the countryside. Even in the new home he received repeated phone calls, warning him that he should not take legal action against hi s attackers or contact th e police. Because he feared he could still be harmed by his attackers, who had not yet been caught, he fled to the United States about a y ear after the attack. The IJ denied (1) Petitioner’s claims fo r asylum and withholding because he had not shown he was attacked on account of his political opin ion, and (2) his claim for protection under the CAT becau se he had not shown that his attackers were public officials or that they were acting with th e acquiescence of the government. The BIA affirmed the IJ’s deci sion without opinion. Petitioner sought review in this court, but we did not address the merits. At the request of Petitioner and the g overnment, we remanded to the BIA to consider the IJ’s conclusion that the harm Petiti oner suffered constituted past to rture, but that he was still ineligible for relief under the CAT because he did not establish that his attackers were public officials or individuals acting with th e acquiescence of such officials. On remand the BIA in turn remand ed to the IJ for further fact-fi nding regarding the identities of the attackers.4 The parties agreed that no additional evidentiary hearin g was needed and that the decision on remand could be based on the existi ng record. Because th e IJ who originally handled the matter had been transferred, a di fferent IJ was assigned to the case. But instead of making a finding as to the identities of Petitioner’s a ttackers, the IJ ruled that, even assuming they were pub lic officials, Petitioner was still ineligible for protection under the CAT as he could not show that it was more likely than not he would be tortured if returned to China. (Going beyond the scop e of the remand, the IJ also denied asylum and withholding of rem oval, ruling that Petitioner failed to establish that he was harmed because of his political opinion.) Petitioner appealed the IJ’s decision to the BIA, which affirmed the IJ’s denial of relief under the CAT because he had not esta blished likely future torture. He has petitioned for our review of that decision, as well as the BIA’s earlier denial of his asylum and withholding cl aims. We address all th ree claims for relief.
II. DISCUSSION “Our scope of review directly correla tes to the form of the BIA decision.” Sidabutar v. Gonzales , 503 F.3d 1116, 1123 (10th Cir. 2007). When a single BIA member issues a summary affirmance without opinion, as with the first BIA opinion in Petitioner’s case, we consider the IJ’s opinion to be the agency decision for the purpose of appeal and “look[] to that opini on to determine the agency’s rationale.” Id. But “if a single BIA member issues a brief order affi rming, modifying, or remanding the IJ’s order,” as with the second BIA decision in this case, then the BIA decision is considered the final removal order. Id. In that circumstance, however, “we may consult the IJ’s5 opinion to the extent that the BIA relied upon or incorporated it.” Id. (internal quotation marks omitted). “We review . . . legal determinations de novo, and . . . findings of fact under a substantial-evidence standard.” Niang v. Gonzales , 422 F.3d 1187, 1196 (10th Cir. 2005). Unless “any reasonable adjudicator would be compelled to conclude to the contrary,” we treat the findings of fact as conclusive. 8 U.S.C. § 1252(b)(4)(B). A. Asylum and Withholding of Removal To be eligible for asylum and withholding of removal, an applicant must demonstrate he was persecuted or ha s a well-founded fear of persecution on account of his race, religion, nationality, membership in a particular social group, or political opinion. See Niang , 422 F.3d at 1194, 1195. An applicant must therefore provide evidence that the individuals who harmed him were motivated to do so because of the protected ground, thus establishing a “nex us” between the harm and the ground. See INS v. Elias-Zacarias , 502 U.S. 478, 483 (1992) (beca use asylum statute “makes motive critical, [applicant] must provide some evidence of [his persecut ors’ motives], direct or circumstantial”); Niang , 422 F.3d at 1200. On appeal Petitioner challenges the IJ’s determination that he was not attacked becaus e of his political opinion. He contends that he was attacked for having an imputed “anti-government political stance,” as he “protested by words and action the unfair tr eatment by the Chinese government on the barbaric eminent domain policy.” Aplt. Br. at 14. The evidence here, however, supports the IJ’s finding that Petitioner opposed his building’s demolition for only personal reasons , not because he held a political opinion against the government’s policy of eminent dom ain. He never organized or participated6 in any protests of the demoliti on of his building or of others nearby. When asked why he had not protested other demolitions, he said that “it wasn’t the place I, I lived so I did not protest.” CAR 176. He also expressed several times that his primary concern was inadequate financial compensation. Alth ough Petitioner said he told the demolition department that he was “very strongly agai nst this policy to demolish our homes,” CAR 171, he also told an official he would mo ve if he was offered enough compensation. The Seventh Circuit confronted a similar circumstance in Weiping Chen v. Holder , 744 F.3d 527 (7th Cir. 2014). The petitioner ha d been detained and be aten for refusing to vacate his store and prot esting its demolition. See id. at 530. But he had “not engage[d] in any of the classic examples of political ac tivity,” having taken pa rt in only one public sit-in. Id . at 534. The court concluded that his harm was the result of “a personal property dispute rather than an expression of political opinion.” Id . Unpublished opinions by other circuits have also diffe rentiated between a personal opposition to demolition of one’s property an d holding a political opinion against China’s eminentdomain policy. See, e.g., Bin Huang v. U.S. Att’y Gen. , 569 F. App’x 715, 719 (11th Cir. 2014) (“Huang’s incident involv ed a personal dispute with the government, where he was beaten for trying to stop his home’s demolition, not for his taking a general political stance against corruption.”); Zhen Hui Liu v. Mukasey , 257 F. App’x 424, 426 (2d Cir. 2007) (“Liu and his father protested the confisca tion of their family’s land in an effort to protect the family’s livelihood, not challenge the legitimacy of China’s government.”). Petitioner urges us to follow the Ninth Circuit’s decision in Xinbing Song v.
Sessions , 882 F.3d 837, 841–42 (9th Cir. 2017), which held that a petitioner who was7 detained and beaten for protesting the Ch inese government’s attempt to demolish a building in which he owned a unit was persec uted for his “anti-gove rnment anti-eminent domain political opinion.” 1 But the petitioner in Song had organized a protest with over 100 neighbors, identified himsel f to a government official as a protest leader, and hung a banner from his unit stating that he “would rather die than give up his property.” Id . at 840. Government officials also denounced So ng’s protest for being “anti-government.” Id . Petitioner here, in contrast, was not in volved in any activity that elevated his opposition to his building’s demolition to an actual or perceived political action. Petitioner nevertheless contends that his eligibility for asylum and withholding cannot be resolved without an identification of his attack ers. He also asserts that because he was found to be a credible witness, there should be no dispute that his attackers were government officials. But regardless of the id entity of his attackers, his failure to establish that he was harmed because of his political opinion precludes asylum eligibility. This lack of nexus also disposes of his argu ment that a “severe form of past persecution alone, as Petitioner here with permanent hand icap, and without more, entitles the victim to an asylum grant.” Aplt. Br. at 11. And because the burden of pr oof for withholding of removal is “more demanding” than that for as ylum, he necessarily fails to show he is entitled to relief under the withholding statute as well. Elzour v. Ashcroft , 378 F.3d 1143, 1149 (10th Cir. 2004) (interna l quotation marks omitted).

1 In his brief, Petitioner cites to the Ninth Circuit’s decision in Song v. Sessions , 877 F.3d 889 (9th Cir. 2017), but that decision was am ended and superseded at 882 F.3d 837 (9th Cir. 2017).8 B. Convention Against Torture To receive the protections of the CAT, an applicant must “show that it is more likely than not that he or she would be tort ured if removed to [a particular] country,” Elzour , 378 F.3d at 1150, and that the torture wo uld be “inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity,” 8 C.F.R. § 1208.18(a)(1). Under the CAT an ap plicant “is not entitled to a presumption of future torture based on evidence of past tort ure; nor does a showing of past torture automatically render [him] CAT eligible.” Niang , 422 F.3d at 1202. Petitioner argues that the BIA erred in de nying relief under the CAT by (1) ignoring alleged evidence of his risk of future tortur e, and (2) failing to adhere to this court’s mandate “to clearly make an identification of the perpetrators” of the attack on Petitioner. Aplt. Br. at 12. Both gro unds are without merit. First, Petitioner contends that the BIA did not consider that he attempted to have his attackers arrested by the police and cons equently received th reats to his and his mother’s life and safety. But the BIA did refer to the IJ’s findings, which considered the threats Petitioner received while hospitalized and described Pe titioner’s efforts to contact the police in hopes of locati ng his attackers. Although Petitioner argues that there is no indication that the threats ceased when he le ft China, he has offered no evidence of any present threats. His testimony before the IJ claimed only that while he was hospitalized and while he was out of the hospital receiv ing treatment for his injuries, he and his mother received phone calls in 2012 and 2013 th reatening to hurt him if he contacted the police. The lack of evidence of any recent or ongoing threats, coupled with the already-9 completed demolition of the build ing and the ability of his moth er to live in safety after the attack, provides substantia l evidence to support the BIA’ s decision that he failed to show likely future to rture upon return. Petitioner claims that the BIA also erred because it did not make a finding of the identity of his attack ers in accordance with our rema nd order and that this mistake requires that we remand again to the BIA. But Petitioner cannot show how he was harmed by the absence of this finding. See Nazaraghaie v. INS , 102 F.3d 460, 465 (10th Cir. 1996) (“[E]ven assuming arguendo that th e BIA failed to weigh certain pieces of evidence fully, the result in this case would be no different . Any error on the part of the BIA is therefore harmless . . . .”). Instead of making this finding, the BIA assumed that his past torture was “by or at the acquies cence of public officials,” CAR 4, but determined that he still could not estab lish likely future torture and was therefore ineligible for relief under the CAT.
III. CONCLUSION
We DENY the petition for review.

Entered for the Court

Harris L Hartz Circuit Judge