Zhen Cao v. Holder , 361 F. App'x 270 ( 2010 )

09-1357-ag
Cao v. Holder
BIA
Harbeck, IJ
A095 687 387
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 21 st day of January, two thousand ten.
5
6 PRESENT:
7 ROBERT D. SACK,
8 BARRINGTON D. PARKER,
9 REENA RAGGI,
10 Circuit Judges.
11
12 _______________________________________
13
14 ZHEN CAO,
15 Petitioner,
16
17 v. 09-1357-ag
18 NAC
19 ERIC H. HOLDER, JR., ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Norman Kwai Wing Wong, New York, New
24 York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General, Terri J. Scadron, Assistant
28 Director, Corey L. Farrell,
29 Attorney, Office of Immigration
30 Litigation, Civil Division, United
31 States Department of Justice,
32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
4 review is DENIED.
5 Petitioner Zhen Cao, a native and citizen of the
6 People’s Republic of China, seeks review of a March 19, 2009
7 order of the BIA affirming the July 12, 2007 decision of
8 Immigration Judge (“IJ”) Dorothy Harbeck, denying her
9 applications for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re Zhen
11 Cao, No. A095 687 387 (B.I.A. Mar. 19, 2009), aff’g No.
12 A095 687 387 (Immig. Ct. N.Y. City July 12, 2007). We
13 assume the parties’ familiarity with the underlying facts
14 and procedural history of the case.
15 We review the agency’s factual findings under the
16 substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B);
17 see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008).
18 We review de novo questions of law and the application of
19 law to undisputed fact. See, e.g., Salimatou Bah v.
20 Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
2
1 The BIA did not err in finding that Cao failed to
2 establish her eligibility for relief. As an initial matter,
3 the record supports the BIA’s finding that Cao failed to
4 challenge the IJ’s conclusion with regard to her past
5 persecution claim. Accordingly, we decline to consider
6 Cao’s unexhausted argument that she was persecuted in the
7 past. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104,
8 107 n.1, 122 (2d Cir. 2007).
9 The BIA also properly found that Cao failed to
10 establish that she had an objectively reasonable fear of
11 returning to China. See Ramsameachire v. Ashcroft, 357 F.3d
12 169, 178 (2d Cir. 2004). Cao testified that at the time of
13 her hearing before the IJ, several members of her family
14 continued to attend an underground church and had not
15 incurred any harassment or mistreatment at the hands of
16 government officials. It is not improper for the agency to
17 consider an applicant’s claim of a well-founded fear of
18 persecution diminished where similarly-situated family
19 members remain in his or her native country unharmed. See
20 Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999).
21 Although Cao refers in her brief to portions of the record
3
1 detailing repression of underground churches, the IJ did not
2 err in finding that Cao’s own experiences undermined the
3 objective reasonableness of her fear. See Corovic, 519 F.3d
4 at 95. Ultimately, substantial evidence supports the
5 agency’s conclusion that Cao failed to meet her burden of
6 proof because no reasonable adjudicator would be compelled
7 to conclude to the contrary. See id.8 Because Cao was unable to establish the objective
9 likelihood of persecution required to meet her burden of
10 proof for asylum, and because Cao failed to present
11 particularized evidence suggesting that she will more likely
12 than not be tortured as a result of her illegal departure
13 from China, the agency did not err in denying her
14 withholding of removal and CAT claims. See Paul v.
15 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Xue Hong Yang v.
16 U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir. 2005); see
17 also Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156,
18 158 (2d Cir. 2005).
19 For the foregoing reasons, the petition for review is
20 DENIED. As we have completed our review, any stay of
21 removal that the Court previously granted in this petition
4
1 is VACATED, and any pending motion for a stay of removal in
2 this petition is DISMISSED as moot. Any pending request for
3 oral argument in this petition is DENIED in accordance with
4 Federal Rule of Appellate Procedure 34(a)(2), and Second
5 Circuit Local Rule 34(b).
6
7
8 FOR THE COURT:
9 Catherine O’Hagan Wolfe, Clerk
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