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.

08-2313-ag

Qiu v. Holder

BIA

Weisel, IJ

A095 914 324

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 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.

23
2

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

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

11 is DENIED, in part, and DISMISSED, in part.

12 Rui Zhong Qiu, a native and citizen of China, seeks

13 review of an April 15, 2008 order of the BIA affirming the

14 May 25, 2006 decision of Immigration Judge (“IJ”) Robert D.

15 Weisel, which denied his application for asylum, withholding

16 of removal, and relief under the Convention Against Torture

17 (“CAT”). In re Rui Zhong Qiu, No. A095 914 324 (B.I.A. Apr.

18 15, 2008), aff’g No. A095 914 324 (Immig. Ct. N.Y. City May

19 25, 2006). We assume the parties’ familiarity with the

20 underlying facts and procedural history in this case.

21 When the BIA does not expressly “adopt” the IJ’s

22 decision, but its brief opinion closely tracks the IJ’s

23 reasoning, the Court may consider both the IJ’s and the

24 BIA’s opinions “for the sake of completeness.” Zaman v.

25 Mukasey, 514 F.3d 233, 237 (2d Cir. 2008). We review the

26 agency’s factual findings under the substantial evidence
3

1 standard. 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S.

2 Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir. 2007). 

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).

6 I. Asylum

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

10 under 8 U.S.C. § 1158(a)(2)(B), or its finding of neither

11 changed nor extraordinary circumstances excusing the

12 untimeliness under 8 U.S.C. § 1158(a)(2)(D). 

13 Notwithstanding that provision, however, this Court retains

14 jurisdiction to review constitutional claims and “questions

15 of law.” 8 U.S.C. § 1252(a)(2)(D). Because Qiu has raised

16 neither a constitutional claim nor a question of law, we

17 lack jurisdiction to review his challenge to the agency’s

18 denial of his application for asylum. 8 U.S.C. 

19 § 1158(a)(3). We thus proceed to review Qiu’s challenge to

20 the agency’s denial of his application for withholding of

21 removal and CAT relief. 

22 II. Withholding of Removal
4

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 “personally experienced” if it

8 is to form the basis of relief). Qiu has not alleged that

9 he engaged in any form of resistance that would render him

10 eligible for relief. See Matter of S-L-L-, 24 I&N Dec. 1,

11 10 (BIA 2006). 

12 Nor did the agency err by concluding that because Qiu

13 is unmarried, any claim that he would face future

14 persecution on account of possible future violations of the

15 family planning policy would be too speculative to merit

16 relief. See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d

17 Cir. 2005) (holding that, absent solid support in the record

18 for the petitioner’s assertion that he would be subjected to

19 persecution, his fear was “speculative at best”).

20 B. Falun Gong

21 The agency also reasonably denied Qiu’s withholding of

22 removal claim to the extent it was based on his recent
5

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

10 authorities in his country of nationality are either aware

11 of his activities or likely to become aware of his

12 activities”). Qiu’s argument that the agency neglected to

13 consider record evidence detailing the mistreatment of Falun

14 Gong practitioners is unavailing. The BIA did not dispute

15 the existence of such mistreatment; rather, it found that

16 Qiu was not likely to be subjected to persecution because no

17 one in China knew he practiced Falun Gong. In any event, we

18 “presume that [the agency] has taken into account all of the

19 evidence before [it], unless the record compellingly

20 suggests otherwise.” Xiao Ji Chen v. U.S. Dep’t of Justice,

21 471 F.3d 315, 337 n.17 (2d Cir. 2006). 

22 Therefore, because the agency reasonably found that Qiu

23 failed to demonstrate that it was more likely than not that
6

1 he would face persecution if returned to China, it

2 reasonably denied his application for withholding of

3 removal. See Manzur, 494 F.3d at 289. 

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

10 Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Kyaw

11 Zwar Tun v. INS, 445 F.3d 554, 567 (2d Cir. 2006). To the

12 extent Qiu’s CAT claim was based on his alleged illegal

13 departure, it is well-settled that the agency does not err

14 in finding that a petitioner is not “entitled to CAT

15 protection based solely on the fact that he is part of the

16 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

18 (2d Cir. 2005). Even assuming that Qiu left China

19 illegally, the agency did not err in finding that he failed

20 to provide the type of particularized evidence necessary to

21 demonstrate eligibility for CAT relief. See id.

22 For the foregoing reasons, the petition for review is

23 DENIED, in part, and DISMISSED, in part. As we have
7

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