Hai Hui Qiu v. Holder , 365 F. App'x 285 ( 2010 )

08-3901-ag
Qiu v. Holder
BIA
Bain, IJ
A098 560 281
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 11 th day of February, two thousand ten.
PRESENT:
GUIDO CALABRESI,
ROSEMARY S. POOLER,
ROBERT A. KATZMANN,
Circuit Judges.
_____________________________________
HAI HUI QIU,
Petitioner,
v. 08-3901-ag
NAC
ERIC H. HOLDER JR., ATTORNEY
GENERAL, *
Respondent.
_____________________________________
*
Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Attorney General Eric H. Holder Jr., is automatically substituted
for former Attorney General Michael B. Mukasey as respondent in this
case.
FOR PETITIONER: Robert J. Adinolfi, Louis &
Adinolfi, New York, N.Y.
FOR RESPONDENT: Gregory G. Katsas, Assistant
Attorney General, Keith I. McManus,
Senior Litigation Counsel, Jessica
E. Sherman, Trial Attorney, Office
of Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED, that the petition for review
is DENIED.
Hai Hui Qiu, a native and citizen of the People’s
Republic of China, seeks review of a July 28, 2008 order of
the BIA, affirming the September 18, 2006 decision of
Immigration Judge (“IJ”) Terry A. Bain, which denied his
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Hai Hui
Qiu, No. A098 560 281 (B.I.A. July 28, 2008), aff’g No. A098
560 281 (Immig. Ct. N.Y. City Sept. 18, 2006). We assume
the parties’ familiarity with the underlying facts and
procedural history in this case.
When the BIA summarily affirms the decision of the IJ
without issuing an opinion, see 8 C.F.R. § 1003.1(e)(4),
this Court reviews the IJ’s decision as the final agency
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determination. See Shunfu Li v. Mukasey, 529 F.3d 141, 146
(2d Cir. 2008). We review the agency’s factual findings
under the substantial evidence standard. See 8 U.S.C.
§ 1252(b)(4)(B). Questions of law and the application of
law to undisputed fact are reviewed de novo. See Salimatou
Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
We conclude that the agency did not err in finding that
Qiu failed to demonstrate eligibility for asylum or
withholding of removal. The agency properly found that Qiu
had failed to show that at least one “central reason” for
any mistreatment that he suffered was “on account of” his
political opinion. See 8 U.S.C. § 1158(b)(1)(B)(i). Qiu
did not exhaust his claim of future persecution to the BIA,
but we note that he did not show that any mistreatment that
he would suffer upon return to China would be “on account
of” his political opinion. See id.; see also Yueqing Zhang
v. Gonzales, 426 F.3d 540, 545 (2d Cir. 2005) (an “applicant
must also show, through direct or circumstantial evidence,
that the persecutor’s motive to persecute arises from the
applicant's political belief”). According to Qiu’s
testimony, the “central reason” he was sought by the
authorities was that his Village Chief’s nephew attacked him
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during a basketball game and Qiu reported it to the police
and the County Chief. While Qiu argues that the authorities
planted Falun Gong material in his home, he does not contend
that the authorities in fact believed him to practice Falun
Gong and that the police officers who planted the material,
or others within the police force, did or will seek to
persecute him on account of their belief that he practices
Falun Gong. Qiu need not show that a protected ground was
the sole basis for his persecution, but he must at least
show that it was or would be a motivating factor. See Uwais
v. U.S. Att’y Gen., 478 F.3d 513, 517 (2d Cir. 2007).
Therefore, because Qiu failed to show the requisite nexus to
a protected ground, the agency did not err in denying his
application for asylum and withholding of removal. See Paul
v. Gonzales, 444 F.3d 148, 155-56 (2d Cir. 2006)
(withholding claim necessarily fails if the applicant is
unable to show the objective likelihood of persecution
needed to make out an asylum claim).
Finally, in his brief to this Court, Qiu failed to
challenge the agency’s finding that he was ineligible for
CAT relief. We therefore deem waived any challenge to the
denial of such relief. See Yueqing Zhang, 426 F.3d at 541
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n.1.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, the pending motion
for a stay of removal in this petition is DISMISSED as moot.
The pending request for oral argument in this petition is
DENIED in accordance with Federal Rule of Appellate
Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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