Pursuant to Federal Rule of Appellate Procedure 1 43(c)(2), Attorney General Eric. H. Holder Jr. is automatically substituted for former Attorney General Michael B. Mukasey as respondent in this case. 08 -23 13 -ag Qiu v. Holder BI A W ei se l, IJ A 095 914 324 

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O F I T O N A N YP A R T YN O T RE PR E SE N T E D 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 March, two thousand ten . st 5 6 PRESENT: 7 ROSEMARY S. POOLER, 8 BARRIGNTON D. PARKER, 9 RICHARD C. WESLEY, 10 Circuit Judges . 11

_______________________________________ 12 13 RUI ZHONG QIU, 14 Petitioner , 15 16 v. 08-2313-ag 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 1 19 ATTORNEY GENERAL, 20 Respondent . 21

_______________________________________ 22 FOR PETITIONER: Rui Zhong Qiu, Pro Se . 232 1 FOR RESPONDENT: Tony West, Assistant Attorney 2 General; Linda S. Wernery, Assistant 3 Director; Gerald M. Alexander, Trial 4 Attorney, Office of Immigration 5 Litigation, United States Department 6 of Justice, Washington, D.C. 7 8 UPON DUE CONSIDERATION of this petition for review of a 9 Board of Immigration Appeals (“BIA”) decision, it is hereby 1 0 ORDERED, ADJUDGED, AND DECREED, that the petition for review 1 1 is DENIED, in part, and DISMISSED, in part. 1 2 Rui Zhong Qiu, a native and citizen of China, seeks 1 3 review of an April 15, 2008 order of the BIA affirming the 1 4 May 25, 2006 decision of Immigration Judge (“IJ”) Robert D. 1 5 Weisel, which denied his application for asylum, withholding 1 6 of removal, and relief under the Convention Against Torture 1 7 (“CAT”). In re Rui Zhong Qiu , No. A095 914 324 (B.I.A. Apr. 1 8 15, 2008), aff’gNo. A095 914 324 (Immig. Ct. N.Y. City May 1 9 25, 2006). We assume the parties’ familiarity with the 2 0 underlying facts and procedural history in this case. 2 1 When the BIA does not expressly “adopt” the IJ’s 2 2 decision, but its brief opinion closely tracks the IJ’s 2 3 reasoning, the Court may consider both the IJ’s and the 2 4 BIA’s opinions “for the sake of completeness.” Zaman v. 25 Mukasey , 514 F.3d 233, 237 (2d Cir. 2008). We review the 2 6 agency’s factual findings under the substantial evidence3 1 standard. 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir. 2007). 2 3 We review de novo questions of law and the application of 4 law to undisputed fact. See Salimatou Bah v. Mukasey , 529 5 F.3d 99, 110 (2d Cir. 2008). I. Asylum 6 7 Title 8, Section 1158(a)(3) of the United States Code 8 provides that no court shall have jurisdiction to review the 9 agency’s finding that an asylum application was untimely 1 0 under 8 U.S.C. § 1158(a)(2)(B), or its finding of neither 1 1 changed nor extraordinary circumstances excusing the untimeliness under 8 U.S.C. § 1158(a)(2)(D) 1 2 . 1 3 Notwithstanding that provision, however, this Court retains 1 4 jurisdiction to review constitutional claims and “questions 1 5 of law.” 8 U.S.C. § 1252(a)(2)(D). Because Qiu has raised neither a constitutional claim nor a question of law, 1 6 we 1 7 lack jurisdiction to review his challenge to the agency’s denial of his application for asylum 1 8 . 8 U.S.C. § 1158(a)(3). We 1 9 thus proceed to review Qiu’s challenge to 2 0 the agency’s denial of his application for withholding of removal and CAT relief. 21 22 II. Withholding of Removal4 1 A. Family Planning 2 The agency reasonably concluded that Qiu failed to 3 demonstrate his eligibility for withholding of removal to 4 the extent his claim was based on his ex-wife’s forced 5 abortion. See Shi Liang Lin v. U.S. Dep’t of Justice , 494 6 F.3d 296, 306 (2d Cir. 2007) (en banc) (providing that any 7 alleged persecution must be “ personallyexperienced” if it is to form the basis of relief). 8 Qiu has not alleged that 9 he engaged in any form of resistance that would render him 1 0 eligible for relief. See Matter of S-L-L- , 24 I&N Dec. 1, 1 1 10 (BIA 2006). 1 2 Nor did the agency err by concluding that because Qiu 1 3 is unmarried, any claim that he would face future 1 4 persecution on account of possible future violations of the 1 5 family planning policy would be too speculative to merit 1 6 relief. See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d 1 7 Cir. 2005) (holding that, absent solid support in the record 1 8 for the petitioner’s assertion that he would be subjected to 1 9 persecution, his fear was “speculative at best”).

B. Falun Gong 20 2 1 The agency also reasonably denied Qiu’s withholding of 2 2 removal claim to the extent it was based on his recent5 1 involvement with Falun Gong. While the BIA noted that Falun 2 Gong practitioners may face mistreatment in China, it found 3 insufficient evidence in the record upon which to conclude 4 that Qiu was a “dedicated” practitioner who would come to 5 the attention of authorities. We find no error in this 6 regard. See Hongsheng Leng v. Mukasey , 528 F.3d 135, 143 7 (2d Cir. 2008) (“Put simply, to establish a well-founded 8 fear of persecution in the absence of any evidence of past 9 persecution, an alien must make some showing that 1 0 authorities in his country of nationality are either aware 1 1 of his activities or likely to become aware of his activities”). 1 2 Qiu’s argument that the agency neglected to 1 3 consider record evidence detailing the mistreatment of Falun 1 4 Gong practitioners is unavailing. The BIA did not dispute 1 5 the existence of such mistreatment; rather, it found that 1 6 Qiu was not likely to be subjected to persecution because no 1 7 one in China knew he practiced Falun Gong. In any event, we 1 8 “presume that [the agency] has taken into account all of the 1 9 evidence before [it], unless the record compellingly 2 0 suggests otherwise.” Xiao Ji Chen v. U.S. Dep’t of Justice , 471 F.3d 315, 337 n.17 (2d Cir. 2006). 21 2 2 Therefore, because the agency reasonably found that Qiu 2 3 failed to demonstrate that it was more likely than not that6

he would face persecution if returned to China, it 1 2 reasonably denied his application for withholding of removal. See Manzur, 494 F.3d at 289. 3 4 III. CAT Relief 5 Because Qiu was unable to show the objective likelihood 6 of persecution needed to make out a withholding of removal 7 claim based on either his family planning or Falun Gong 8 claims, he was necessarily unable to meet the higher 9 standard required to succeed on a claim for CAT relief. See Paul v. Gonzales , 444 F.3d 148, 156 (2d Cir. 2006) 1 0 ; Kyaw Zwar Tun v. INS , 445 F.3d 554, 567 (2d Cir. 2006). 1 1 To the 1 2 extent Qiu’s CAT claim was based on his alleged illegal 1 3 departure, it is well-settled that the agency does not err 1 4 in finding that a petitioner is not “entitled to CAT 1 5 protection based solely on the fact that he is part of the 1 6 large class of persons who have illegally departed China.” 17 See Mu Xiang Lin v. U.S. Dep’t of Justice , 432 F.3d 156, 160 1 8 (2d Cir. 2005). Even assuming that Qiu left China 1 9 illegally, the agency did not err in finding that he failed 2 0 to provide the type of particularized evidence necessary to demonstrate eligibility for CAT relief. See id . 21 For the foregoing reasons, the petition for review is 22 2 3 DENIED, in part, and DISMISSED, in part. As we have7 1 completed our review, the pending motion for a stay of 2 removal in this petition is DISMISSED as moot. 3 FOR THE COURT: 4 Catherine O’Hagan Wolfe, Clerk 5 6 7