Ming Hu v. Holder , 416 F. App'x 116 ( 2011 )

10-1037-ag
Hu v. Holder
BIA
Nelson, IJ
A099 697 030
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 28th day of March, two thousand eleven.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 JOSÉ A. CABRANES,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _____________________________________
12
13 MING HU,
14 Petitioner,
15
16 v. 10-1037-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Peter D. Lobel, Joshua E. Bardavid,
24 New York, New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Linda S. Wernery, Assistant
28 Director; William C. Minick,
29 Attorney, Office of Immigration
30 Litigation, United States Department
31 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED, that the petition for review
4 is DENIED.
5 Ming Hu, a native and citizen of the People’s Republic
6 of China, seeks review of a February 22, 2010, order of the
7 BIA, affirming the June 24, 2008, decision of Immigration
8 Judge (“IJ”) Barbara A. Nelson, which denied his application
9 for asylum, withholding of removal, and relief under the
10 Convention Against Torture (“CAT”). In re Ming Hu, No. A099
11 697 030 (B.I.A. Feb. 22, 2010), aff’g No. A099 697 030
12 (Immig. Ct. N.Y. City June 24, 2008). We assume the
13 parties’ familiarity with the underlying facts and
14 procedural history in this case.
15 Under the circumstances of this case, we consider both
16 the IJ’s and the BIA’s opinions “for the sake of
17 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
18 2008). The applicable standards of review are well-
19 established. See Corovic v. Mukasey, 519 F.3d 90, 95 (2d
20 Cir. 2008); Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d
21 Cir. 2008).
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1 Because the BIA assumed Hu to be credible, we do the
2 same. See Yan Chen v. Gonzales, 417 F.3d 268, 271-72 (2d
3 Cir. 2005). As Hu’s application for relief was not based on
4 past persecution, but on his fear that he would face future
5 persecution due to his political activities in the United
6 States, he had the burden of proof to establish that his
7 fear of persecution was objectively well-founded. See Baba
8 v. Holder, 569 F.3d 79, 86 (2d Cir. 2009); 8 C.F.R.
9 §§ 208.13(b)(1), 1208.16(b)(1). Here, the agency did not
10 err in finding that Hu failed to show that his fear of
11 future persecution was objectively well-founded. See
12 Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).
13 In concluding that Hu failed to establish his
14 eligibility for relief, the agency considered the grounds
15 for Hu’s fear that the Chinese government was likely to
16 become aware of his political activities and reasonably
17 found them insufficient. See Hongsheng Leng v. Mukasey, 528
18 F.3d 135, 143 (2d Cir. 2008). First, the agency reasonably
19 found that Hu failed to show that articles he wrote for the
20 website of the China Democracy Party (“CDP”) had attracted
21 the attention of the Chinese authorities or were likely to
22 be published in China, as Hu testified that he did not know
3
1 if the articles had appeared in China. See id. The agency
2 also reasonably determined that although Hu identified
3 himself during an interview with Voice of America, he had
4 not established a reasonable likelihood that the interview
5 would bring his political activities to the attention of the
6 Chinese government, as he testified that the interview was
7 not recorded. See id.
8 Likewise, the BIA reasonably found that Hu’s testimony,
9 that he helped send pro-democracy letters or emails to
10 Chinese universities, was insufficient to establish a
11 likelihood that the Chinese government would become aware of
12 his political activities, because he did not show that his
13 name was on the emails, or that his participation could
14 otherwise be traced back to him. See id. Finally, the BIA
15 reasonably took note of Hu’s testimony that his wife,
16 remaining in China, had not indicated in their weekly phone
17 conversations that the Chinese government had exhibited any
18 interest in him. Cf. Melgar de Torres v. Reno, 191 F.3d
19 307, 313 (2d Cir. 1999) (finding that where asylum
20 applicant’s family members continued to live in applicant’s
21 native country unharmed, claim of well-founded fear was
22 diminished).
4
1 Although Hu argues that because his articles may be
2 obtained via the internet he has sustained his burden of
3 showing a reasonable possibility that the Chinese government
4 will become aware of his political activities, we are not
5 persuaded that the record compels this conclusion. See
6 Siewe v. Gonzales, 480 F.3d 160, 167 (2d Cir. 2007) (“Where
7 there are two permissible views of the evidence, the
8 factfinder’s choice between them cannot be clearly
9 erroneous.”) (quoting Anderson v. Bessemer City, 470 U.S.
10 564, 574 (1985)).
11 Hu further argues that the BIA erred in failing to
12 consider his claim that CDP members are subject to a
13 “pattern or practice” of persecution in China. Because the
14 agency determined that Hu failed to show that the Chinese
15 government was likely to become aware of his political
16 activities and affiliation with the CDP, it was unnecessary
17 for the agency to also address whether the Chinese
18 government has exhibited a “pattern or practice” of
19 persecuting CDP activists. See Hongsheng Leng, 528 F.3d at
20 143.
21 For the foregoing reasons, the petition for review is
22 DENIED. As we have completed our review, any stay of
23 removal that the Court previously granted in this petition
5
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 34.1(b).
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
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