09-4985-ag
    Lin v. Holder
                                                                                  BIA
                                                                            Abrams, IJ
                                                                          A045 700 623
                     UNITED STATES COURT OF APPEALS
                         FOR THE SECOND CIRCUIT

                               SUMMARY ORDER
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         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 30th day of June, two thousand eleven.

    PRESENT:
             REENA RAGGI,
             RICHARD C. WESLEY,
             PETER W. HALL,
                  Circuit Judges.
    _______________________________________

    JIU TUAN LIN, a.k.a. LIN JIU TUAN,
    a.k.a. TUAN JIU LIN,
             Petitioner,

                    v.                                     09-4985-ag
                                                           NAC
    BOARD OF IMMIGRATION APPEALS,
             Respondent.
    _______________________________________

    FOR PETITIONER:               Thomas H. Nooter, New York, New
                                  York.

    FOR RESPONDENT:               Tony West, Assistant Attorney
                                  General; Richard M. Evans, Assistant
                                  Director; Aliza B. Alyeshmerni,
                                  Trial Attorney, Office of
                                  Immigration Litigation, United
                                  States Department of Justice,
                                  Washington, D.C.
    UPON DUE CONSIDERATION of this petition for review of a

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

hereby ORDERED, ADJUDGED, AND DECREED, that the petition for

review is DENIED.

    Jiu Tuan Lin, a native and citizen of the People’s

Republic of China, was convicted on a guilty plea of

conspiracy to commit alien smuggling and conspiracy to

commit hostage taking.   Having cooperated with the United

States authorities investigating others involved in such

criminal activity, Lin sought to avoid his own removal from

this country.   He now seeks review of a November 23, 2009

order of the BIA, which affirmed the August 13, 2009

decision of immigration judge (“IJ”) Steven R. Abrams

denying his application for asylum and withholding of

removal but reversed IJ Abrams’ grant of relief under the

Convention Against Torture (“CAT”).     In re Jiu Tuan Lin, No.

A045 700 623 (B.I.A. Nov. 23, 2009), aff’g No. A045 700 623

(Immig. Ct. N.Y. City Aug. 13, 2009).    We assume the

parties’ familiarity with the underlying facts and

procedural history of this case.

    Under the circumstances of this case, we review the

IJ’s decision as modified by the BIA decision.     See Xue Hong

Yang v. U.S. Dep’t of Justice, 

, 522 (2d Cir.

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2005).   The applicable standards of review are well-

established.   See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin

Weng v. Holder, 

, 513 (2d Cir. 2009).

    As a preliminary matter, because Lin does not challenge

the BIA’s conclusions that he was ineligible for asylum and

withholding of removal, we deem any challenge to those

conclusions waived.   See Norton v. Sam’s Club, 

,

117 (2d Cir. 1998).   As a result, we review only the BIA’s

determination that Lin was not eligible for deferral of

removal under the CAT.   Lin argues that, in reaching this

conclusion, the BIA engaged in impermissible fact-finding, a

question of law over which we retain jurisdiction.      See 8

U.S.C. § 1252(a)(2)(D); see also Tian-Yong Chen v. INS, 

, 127 (2d Cir. 2004); De La Rosa v. Holder, 

, 107-08 (2d Cir. 2010).   We are not persuaded.

    To establish his eligibility for deferral of removal

under the CAT, Lin was required to demonstrate, inter alia,

that government officials in China would “know of or remain

willfully blind to” anticipated acts of torture by persons

against whom Lin had cooperated and “thereafter breach their

legal responsibility to prevent it.”   Khouzam v. Ashcroft,

, 171 (2d Cir. 2004).   The BIA determined that


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Lin’s evidence – that a human trafficker with whom he worked

“has a lot of power in China” and that the trafficker’s

father “is a high ranking official in China” - was

insufficient as a matter of law to establish official

Chinese government acquiescence in the feared retribution or

an inability or unwillingness to prevent it.   In reaching

this legal conclusion, the BIA characterized the evidence

about the position of the trafficker’s father as derived

from an uncorroborated cellmate, when, in fact, Lin stated

that he had this information from the trafficker himself.

No matter.   The BIA did not disturb the IJ’s factual

determinations as to the father’s position or any other

point in reaching its legal conclusion that the evidence was

insufficient to establish government acquiescence.      See 8

C.F.R. § 1003.1(d)(3); De La Rosa v. Holder, 

,

107-09 (2d Cir. 2010) (BIA reviews legal question of

official acquiescence de novo and related findings of fact

for clear error).

    Accordingly, the petition for review is DENIED.      As we

have completed our review, any stay of removal that the

Court previously granted in this petition is VACATED, and

any pending motion for a stay of removal in this petition is

DISMISSED as moot.   Any pending request for oral argument in

                              4
this petition is DENIED in accordance with Federal Rule of

Appellate Procedure 34(a)(2), and Second Circuit Local Rule

34.1(b).

                           FOR THE COURT:
                           Catherine O’Hagan Wolfe, Clerk




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