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. At a stated term of the United States Court of Appeals**  1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 28 th** **day of March, two thousand eleven.** 4 5 **PRESENT:** 6 **GUIDO CALABRESI,** 7 **JOSÉ A. CABRANES,** 8 **RICHARD C. WESLEY,** 9 Circuit Judges**.** 10

**_____________________________________** 11 12 **MING HU,** 13 Petitioner**,** 14 15 **v. 10-1037-ag** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20

**_______________________________________** 21 22 **FOR PETITIONER: Peter D. Lobel, Joshua E. Bardavid,** 23 **New York, New York.** 24 25 **FOR RESPONDENT: Tony West, Assistant Attorney** 26 **General; Linda S. Wernery, Assistant** 27 **Director; William C. Minick,** 28 **Attorney, Office of Immigration** 29 **Litigation, United States Department** 30 **of Justice, Washington, D.C.** 312 UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED, that the petition for review 3 is DENIED. 4 Ming Hu, a native and citizen of the People’s Republic 5 of China, seeks review of a February 22, 2010, order of the 6 BIA, affirming the June 24, 2008, decision of Immigration 7 Judge (“IJ”) Barbara A. Nelson, which denied his application 8 for asylum, withholding of removal, and relief under the 9 Convention Against Torture (“CAT”). In re Ming Hu , No. A099 10 697 030 (B.I.A. Feb. 22, 2010), aff’gNo. A099 697 030 11 (Immig. Ct. N.Y. City June 24, 2008). We assume the 12 parties’ familiarity with the underlying facts and 13 procedural history in this case. 14 Under the circumstances of this case, we consider both 15 the IJ’s and the BIA’s opinions “for the sake of 16 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 17 2008). The applicable standards of review are well18 established. See Corovic v. Mukasey, 519 F.3d 90, 95 (2d 19 Cir. 2008); Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d 20 Cir. 2008). 21

223 Because the BIA assumed Hu to be credible, we do the 1

same. See Yan Chen v. Gonzales , 417 F.3d 268, 271-72 (2d 2 Cir. 2005). As Hu’s application for relief was not based on 3 past persecution, but on his fear that he would face future 4 persecution due to his political activities in the United 5 States, he had the burden of proof to establish that his 6 fear of persecution was objectively well-founded. See Baba 7 v. Holder, 569 F.3d 79, 86 (2d Cir. 2009); 8 C.F.R. 8 §§ 208.13(b)(1), 1208.16(b)(1). Here, the agency did not 9 err in finding that Hu failed to show that his fear of 10 future persecution was objectively well-founded. See 11 Ramsameachire v. Ashcroft , 357 F.3d 169, 178 (2d Cir. 2004). 12 In concluding that Hu failed to establish his 13 eligibility for relief, the agency considered the grounds 14 for Hu’s fear that the Chinese government was likely to 15 become aware of his political activities and reasonably 16 found them insufficient. See Hongsheng Leng v. Mukasey, 528 17 F.3d 135, 143 (2d Cir. 2008). First, the agency reasonably 18 found that Hu failed to show that articles he wrote for the 19 website of the China Democracy Party (“CDP”) had attracted 20 the attention of the Chinese authorities or were likely to 21 be published in China, as Hu testified that he did not know 224 if the articles had appeared in China. See id . The agency 1 also reasonably determined that although Hu identified 2 himself during an interview with Voice of America, he had 3 not established a reasonable likelihood that the interview 4 would bring his political activities to the attention of the 5 Chinese government, as he testified that the interview was 6 not recorded. See id

. 7 Likewise, the BIA reasonably found that Hu’s testimony, 8 that he helped send pro-democracy letters or emails to 9 Chinese universities, was insufficient to establish a 10 likelihood that the Chinese government would become aware of 11 his political activities, because he did not show that his 12 name was on the emails, or that his participation could 13 otherwise be traced back to him. See id . Finally, the BIA 14 reasonably took note of Hu’s testimony that his wife, 15 remaining in China, had not indicated in their weekly phone 16 conversations that the Chinese government had exhibited any 17 interest in him. Cf. Melgar de Torres v. Reno , 191 F.3d 18 307, 313 (2d Cir. 1999) (finding that where asylum 19 applicant’s family members continued to live in applicant’s 20 native country unharmed, claim of well-founded fear was 21 diminished). 225 Although Hu argues that because his articles may be 1 obtained via the internet he has sustained his burden of 2 showing a reasonable possibility that the Chinese government 3 will become aware of his political activities, we are not 4 persuaded that the record compels this conclusion. See 5 Siewe v. Gonzales , 480 F.3d 160, 167 (2d Cir. 2007) (“Where 6 there are two permissible views of the evidence, the 7 factfinder’s choice between them cannot be clearly 8 erroneous.”) (quoting Anderson v. Bessemer City,470 U.S. 9 564, 574 (1985)). 10 Hu further argues that the BIA erred in failing to 11 consider his claim that CDP members are subject to a 12 “pattern or practice” of persecution in China. Because the 13 agency determined that Hu failed to show that the Chinese 14 government was likely to become aware of his political 15 activities and affiliation with the CDP, it was unnecessary 16 for the agency to also address whether the Chinese 17 government has exhibited a “pattern or practice” of 18 persecuting CDP activists. See Hongsheng Leng, 528 F.3d at 19 143. 20 For the foregoing reasons, the petition for review is 21 DENIED. As we have completed our review, any stay of 22 removal that the Court previously granted in this petition 236 is VACATED, and any pending motion for a stay of removal in 1 this petition is DISMISSED as moot. Any pending request for 2 oral argument in this petition is DENIED in accordance with 3 Federal Rule of Appellate Procedure 34(a)(2), and Second 4 Circuit Local Rule 34.1(b). 5
FOR THE COURT: 6 Catherine O’Hagan Wolfe, Clerk 7 8 9 10 11