         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
10
11
12




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