12-644
Huang v. Holder
BIA
Hom, IJ
A087 435 787
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 Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 1st day of August, two thousand thirteen.
5
6 PRESENT:
7 RICHARD C. WESLEY,
8 DENNY CHIN,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11
12 _____________________________________
13
14 MIN HUI HUANG,
15 Petitioner,
16
17 v. 12-644
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _______________________________________
23
24 FOR PETITIONER: Donglai Yang, New Orleans, Louisiana
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26 FOR RESPONDENT: Stuart Delery, Acting Assistant
27 Attorney General; Mary Jane Candaux,
28 Assistant Director; Aimee J.
29 Carmichael, Trial Attorney, Office
30 of Immigration Litigation, United
31 States Department of Justice,
32 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 GRANTED.
5 Petitioner Min Hui Huang, a native and citizen of
6 China, seeks review of a January 31, 2012, order of the BIA,
7 affirming a May 19, 2010, decision of Immigration Judge
8 (“IJ”) Sandy K. Hom, denying his application for asylum and
9 withholding of removal. In re Min Hui Huang, No. A087 435
10 787 (B.I.A. Jan. 31, 2012), aff’g No. A087 435 787 (Immig.
11 Ct. N.Y. City May 19, 2010). We assume the parties’
12 familiarity with the underlying facts and procedural history
13 in this case.
14 Under the circumstances of this case, we have reviewed
15 both 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
18 well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng
19 v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
20 I. Corroboration
21 The agency’s finding that Huang did not meet his burden
22 of proof because he failed to submit corroborating evidence
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1 is not supported by substantial evidence. Although the
2 agency identified what evidence should have been obtained
3 and why such evidence was required, it neither explained why
4 it believed the evidence was reasonably available, nor
5 evaluated Huang’s explanations for his failure to provide
6 such evidence, including that he had not made a copy of his
7 handwritten letter. See 8 U.S.C. § 1158(b)(1)(B)(ii); see
8 also Chuilu Liu v. Holder, 575 F.3d 193, 197-98 (2d Cir.
9 2009); Kyaw Zwar Tun v. INS, 445 F.3d 554, 563-64, 568-69
10 (2d Cir. 2006).
11 II. Past Persecution
12 The agency’s finding that Huang did not suffer past
13 persecution also requires remand. The IJ gave improper
14 weight to its determination that Huang’s resistance to the
15 family planning policies in China was not undertaken as part
16 of a group, or done publicly. “[A]n applicant claiming
17 persecution for other resistance must demonstrate []
18 resistance to a coercive family planning policy, which can
19 cover a wide range of circumstances.” Shi Liang Lin v. U.S.
20 Dep’t of Justice, 494 F.3d 296, 313 (2d Cir. 2007) (internal
21 quotations and alterations omitted)). Therefore, the IJ
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1 erred in its analysis of whether the harm that Huang
2 suffered was on account of a protected ground.
3 The BIA made the alternative finding that Huang’s past
4 harm did not cumulatively amount to persecution because,
5 inter alia, Huang’s testimony regarding the injuries he
6 sustained in detention was too generalized to permit agency
7 review. This finding downplayed Huang’s detailed testimony
8 and the custodial nature of the beatings Huang endured,
9 which might raise his injuries to the level of persecution.
10 “The BIA must . . . be keenly sensitive to the fact that a
11 minor beating or, for that matter, any physical degradation
12 designed to cause pain, humiliation, or other suffering, may
13 rise to the level of persecution if it occurred in the
14 context of an arrest or detention on the basis of a
15 protected ground.” Beskovic v. Gonzales, 467 F.3d 223, 226
16 (2d Cir. 2006) (internal quotations omitted). If Huang’s
17 testimony was insufficient and required further fact-
18 finding, the “appropriate course [was to] remand to the IJ,”
19 see Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289,
20 296 (2d Cir. 2006) (per curiam), not to discredit the
21 testimony altogether.
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1 The BIA did not otherwise analyze whether the harm that
2 Huang suffered in detention amounted to past persecution.
3 “[E]stablishing past persecution creates . . . a rebuttable
4 presumption of . . . a well-founded fear [of future
5 persecution.” Kyaw Zwar Tun, 445 F.3d at 564. Remand is
6 therefore appropriate to determine whether the agency
7 correctly placed the burden on Huang as to his fear of
8 future persecution in China and, if not, whether the
9 government can establish that any such fears were not well-
10 founded.We note that Huang’s peaceful presence in China
11 subsequent to his arrest is not enough, in itself, to rebut
12 the presumption that fear of future persecution is well-
13 founded. See, e.g, Kone v. Holder, 596 F.3d 141, 149 (2d
14 Cir. 2010) (holding that alien’s return trip did not rebut
15 the presumption because “the government cannot satisfy its
16 burden . . . simply by showing that [applicant] enjoyed
17 periods with no new persecution or that [applicant] will not
18 perpetually be persecuted in her native country”).
19 For the foregoing reasons, the petition for review is
20 GRANTED, and the case is REMANDED for reconsideration of
21 Huang’s eligibility for asylum and withholding of removal.
22 As we have completed our review, any stay of removal that
23 the Court previously granted in this petition is VACATED,
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1 and any pending motion for a stay of removal in this
2 petition is DISMISSED as moot. Any pending request for oral
3 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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