09-0572-ag

Li v. Holder

BIA

Weisel, IJ

A098 905 763

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 23 day of March, two thousand ten. rd

5

6 PRESENT:

7 RALPH K. WINTER,

8 JOSÉ A. CABRANES,

9 GERARD E. LYNCH,

10 Circuit Judges.

11 _______________________________________

12

13 YONG QIN LI,

14 Petitioner, 

15

16 v. 09-0572-ag

17 NAC

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL

20 Respondent.

21 ______________________________________

22

23 FOR PETITIONER: Yong Qin Li, pro se, New York, New

24 York.

25

26 FOR RESPONDENT: Tony West, Assistant Attorney

27 General, Civil Division; M. Jocelyn

28 Lopez Wright, Senior Litigation

29 Counsel, Office of Immigration

30 Litigation; Kristin K. Edison,

31 Attorney, Office of Immigration

32 Litigation, United States Department

33 of Justice, Washington, D.C.
2

1 UPON DUE CONSIDERATION of this petition for review of a

2 Board of Immigration Appeals (“BIA”) decision, it is hereby

3 ORDERED, ADJUDGED, AND DECREED that the petition for review

4 is DENIED.

5 Petitioner Yong Qin Li, a native and citizen of the

6 People’s Republic of China, seeks review of a January 28,

7 2009, order of the BIA affirming the December 14, 2006,

8 decision of Immigration Judge (“IJ”) Robert D. Weisel

9 denying Li’s application for withholding of removal and

10 relief under the Convention Against Torture (“CAT”). In re

11 Yong Qin Li, No. A098 905 763 (B.I.A. Jan. 28, 2009), aff’g

12 No. A098 905 763 (Immig. Ct. N.Y. City Dec. 14, 2006). We

13 assume the parties’ familiarity with the underlying facts

14 and procedural history in this case.

15 Under the circumstances of this case, we review the

16 IJ’s decision as supplemented by the BIA’s decision. See

17 Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The

18 applicable standards of review are well-established. See 8

19 U.S.C. § 1252(b)(4)(B); Jian Hui Shao v. Mukasey, 546 F.3d

20 138, 157-58 (2d Cir. 2008); Salimatou Bah v. Mukasey, 529

21 F.3d 99, 110 (2d Cir. 2008). 

22 I. CAT Relief

23 As the government argues, although Li sets forth the
 As the government argues in its brief, Li waives *

any challenge to the IJ’s finding that he failed to

establish either past persecution or a likelihood of

future persecution based on his religion. See Yueqing,

426 F.3d at 545 n.7. We are not persuaded, however, by

the government’s argument that Li failed to exhaust his

3

1 standard for CAT relief in his pro se brief before this

2 Court, even construing that brief broadly, see Steevenez v.

3 Gonzales, 476 F.3d 114, 118 (2d Cir. 2007), he does not

4 challenge the basis for the agency’s denial of his request

5 for CAT relief. Accordingly, we deem any such challenge

6 waived. See Yueqing Zheng v. Gonzales, 426 F.3d 540, 545

7 n.7 (2d Cir. 2005).

8 II. Withholding of Removal

9 In the absence of past persecution, an alien can

10 demonstrate eligibility for withholding of removal if he can

11 show that it is more likely than not he would face

12 persecution on account of a protected ground. 8 C.F.R.

13 § 1208.16(b)(2). The agency reasonably found that Li failed

14 to make this showing, because he did not demonstrate a clear

15 probability that authorities in China were either aware of

16 his activities on behalf of the Chinese Democratic Party

17 (“CDP”) or likely to become aware of such activities. See

18 Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir.

19 2008).*
challenge to the IJ’s denial of relief based on his

political beliefs.

4

1 Before this Court, Li argues that the agency failed to

2 appropriately analyze his claim under the framework

3 articulated in Hongsheng Leng because the BIA “did not

4 expressly rule whether it would be likely or not that the

5 Chinese authorities would be aware of [his] activities.” 

6 However, the IJ explicitly addressed this issue, and under

7 such circumstances, the BIA is not required to supplement

8 the IJ’s analysis. See Mei Chai Ye v. U.S. Dep’t of

9 Justice, 489 F.3d 517, 523 (2d Cir. 2007); see also 8 C.F.R.

10 § 1003.1(e)(4). Similarly, Li’s argument that the IJ failed

11 to consider evidence that he is a member of the CDP is

12 unavailing, as the IJ assumed the credibility of Li’s

13 testimony that Chinese officials photographed him protesting

14 in front of the Chinese consulate. Because the agency’s

15 finding that Li failed to meet his burden of proof for

16 withholding of removal is supported by the record, we need

17 not reach Li’s challenge to the IJ’s adverse credibility

18 determination. 

19 For the foregoing reasons, the petition for review is

20 DENIED. As we have completed our review, any stay of
5

1 removal that the Court previously granted in this petition

2 is VACATED, and any pending motion for a stay of removal in

3 this petition is DISMISSED as moot. Any pending request for

4 oral argument in this petition is DENIED in accordance with

5 Federal Rule of Appellate Procedure 34(a)(2), and Second

6 Circuit Local Rule 34.1(b).

7 FOR THE COURT: 

8 Catherine O’Hagan Wolfe, Clerk

9