MIN LIANG GAO, Petitioner, v. UNITED STATES DEPARTMENT OF JUSTICE, Eric H. Holder, Jr., U.S. Attorney General, Respondent, 372 F. App'x 128

SUMMARY ORDER Petitioner Min Liang Gao, a native and citizen of the People’s Republic of China, seeks review of a November 18, 2008 order of the BIA, vacating the January 31, 2005 decision of Immigration Judge (“IJ”) Terry Bain granting Gao’s application for asylum and withholding of removal. In re Min Ling Gao, No. [ AXXX XXX XXX ] (B.I.A. Nov. 18, 2008), vacating No. [ AXXX XXX XXX ] (Immig. Ct. N.Y. City, Jan. 31, 2005). We assume the parties’ familiarity with the underlying facts and procedural history of the case. Under the circumstances of this case, we review only the BIA’s decision. See Belortaja v.

Gonzales, 484 F.3d 619, 623 (2d Cir.2007). The applicable standards of review are well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.2009). In a prior order, we remanded Gao’s proceedings to the BIA upon the Government’s concession that the BIA had engaged in improper de novo factfinding in its March 22, 2007 order. Gao argues that, on remand, the BIA made the same error in its November, 18, 2008 order. We disagree.

The BIA accepted the facts found by the IJ but concluded, as a matter of law, that Gao had not established either past persecution or a well-founded fear of future persecution based on the sterilization of his mother or on his status as a “de facto orphan.” Pet’r’s Br. at 22. The BIA had the authority to address these “questions of law” regarding Gao’s eligibility for relief. See 8 C.F.R. § 1003.1(d)(3)(h); cf. Kambolli v.

Gonzales, 449 F.3d 454, 457 (2d Cir.2006) (evaluating de novo the agency’s “legal conclusion” that a petitioner did not demonstrate a well-founded fear of persecution based on “facts established in the record”). Aside from arguing that the BIA’s conclusions rested on impermissible factfind-ing, Gao does not challenge the merits of the BIA’s nexus determination. See 8 U.S.C. § 1101(a)(42). Accordingly, Gao has waived any such argument. Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir.2005).

To the extent Gao challenges the BIA’s denial of his application for asylum and withholding of removal, we therefore deny the petition for review. Furthermore, the BIA properly denied Gao’s claim for relief under the Convention Against Torture (“CAT”). Based on the IJ’s factual findings, the BIA reasonably concluded that Gao failed to present “particularized evidence” to meet his burden in showing that he is likely to be tortured based on his illegal departure from China. Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 158 (2d Cir.2005). For the foregoing reasons, 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 this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b). . The Government argues that Gao failed to exhaust any challenge to the BIA’s denial of CAT relief. Even if exhaustion was required, the BIA excused Gao’s failure to exhaust by finding him ineligible for CAT relief. See Xian Tuan Ye v. U.S.

Dep't of Homeland Sec., 446 F.3d 289, 296-97 (2d Cir.2006); Waldron v. INS, 17 F.3d 511, 515 n. 7 (2d Cir.1994).