09-05 72-ag

Li v. Holder BIA Weisel, IJ A098 905 763 

### UNITED STATES COURT OF AP PEALS FOR THE SE COND CIRCU IT 

# SUM MARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY O RDER 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 1 0 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 1 2 No. A098 905 763 (Immig. Ct. N.Y. City Dec. 14, 2006). We 1 3 assume the parties’ familiarity with the underlying facts 1 4 and procedural history in this case. 1 5 Under the circumstances of this case, we review the 1 6 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 1 8 applicable standards of review are well-established. See 8 1 9 U.S.C. § 1252(b)(4)(B); Jian Hui Shao v. Mukasey , 546 F.3d 2 0 138, 157-58 (2d Cir. 2008); Salimatou Bah v. Mukasey , 529 2 1 F.3d 99, 110 (2d Cir. 2008). 22 I. CAT Relief 2 3 As the government argues, although Li sets forth theAs 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 1 0 demonstrate eligibility for withholding of removal if he can 1 1 show that it is more likely than not he would face 1 2 persecution on account of a protected ground. 8 C.F.R. 1 3 § 1208.16(b)(2). The agency reasonably found that Li failed 1 4 to make this showing, because he did not demonstrate a clear 1 5 probability that authorities in China were either aware of 1 6 his activities on behalf of the Chinese Democratic Party 1 7 (“CDP”) or likely to become aware of such activities. See 18 Hongsheng Leng v. Mukasey , 528 F.3d 135, 143 (2d Cir. 1 9 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 Lengbecause 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. 1 0 § 1003.1(e)(4). Similarly, Li’s argument that the IJ failed 1 1 to consider evidence that he is a member of the CDP is 1 2 unavailing, as the IJ assumed the credibility of Li’s 1 3 testimony that Chinese officials photographed him protesting 1 4 in front of the Chinese consulate. Because the agency’s 1 5 finding that Li failed to meet his burden of proof for 1 6 withholding of removal is supported by the record, we need 1 7 not reach Li’s challenge to the IJ’s adverse credibility 1 8 determination. 1 9 For the foregoing reasons, the petition for review is 2 0 DENIED. As we have completed our review, any stay of5 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