09-3648-ag
Huang v. Holder
BIA
Gordon-Uruakpa, IJ
A079 241 419
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 May, two thousand ten.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 PETER W. HALL,
9 DENNY CHIN,
10 Circuit Judges.
11 _______________________________________
12
13 FENG E. HUANG,
14 Petitioner,
15
16 v. 09-3648-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Henry Zhang, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General, Anthony P. Nicastro,
27 Assistant Director, Andrew N.
28 O’Malley, Trial Attorney, Office of
29 Immigration Litigation, Civil
1 Division, United States Department
2 of Justice, Washington, D.C.
3
4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review
7 is DENIED.
8 Petitioner Feng E. Huang, a native and citizen of
9 China, seeks review of an August 10, 2009, order of the BIA,
10 affirming the December 10, 2007, decision of Immigration
11 Judge (“IJ”) Vivienne E. Gordon-Uruakpa pretermitting her
12 application for asylum and denying her application for
13 withholding of removal and relief under the Convention
14 Against Torture (“CAT”). In re Feng E. Huang, No. A079 241
15 419 (B.I.A. Aug. 10, 2009), aff’g No. A079 241 419 (Immig.
16 Ct. N.Y. City Dec. 10, 2007). We assume the parties’
17 familiarity with the underlying facts and procedural history
18 in this case.
19 Under the circumstances of this case, we review the
20 decision of the IJ as supplemented by the BIA. See Yan Chen
21 v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
22 applicable standards of review are well-established. See
23 8 U.S.C. § 1252(b)(4)(B); Corovic v. Mukasey, 519 F.3d 90,
24
2
1 95 (2d Cir. 2008); Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.
2 2008).
3 The agency did not err in determining that Huang failed
4 to meet her burden in establishing her eligibility for
5 withholding of removal and CAT relief. 1 With respect to
6 Huang’s claim based on her religion, the agency reasonably
7 found that she had not shown a likelihood of future
8 persecution or torture based on her religious activities in
9 China. The agency reasonably deemed "speculative" Huang's
10 assertions that if she were returned to China; (a) she would
11 continue to practice her religion (a religion she had only
12 been practicing since her arrival in this country);(b) she
13 would do so by joining an underground church, and (c) she
1
Huang does not challenge the IJ’s pretermission of
her untimely asylum application. See 8 U.S.C. § 1158
(a)(2)(B). Although she argues in her brief that she met
the standard for asylum, i.e., a well-founded fear, we
are not persuaded by the government’s argument that she
waived any challenge to the denial of withholding of
removal and CAT relief. Because the IJ’s decision was
cast in terms of the asylum standard, it is
understandable that Huang’s challenge to that decision
would be cast in similar terms. See Ramsameachire v.
Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004) (explaining
that “[b]ecause the withholding of removal analysis
overlaps factually with the asylum analysis, but involves
a higher burden of proof, an alien who fails to establish
his entitlement to asylum necessarily fails to establish
his entitlement to withholding of removal”).
3
1 would practice her religion in a manner that would attract
2 the government’s attention and subject her to persecution.
3 See Hongsheng Leng v. Mukasey, 528 F.3d 135, 142 (2d Cir.
4 2008) (holding that to establish asylum eligibility, “an
5 applicant must establish that his [or her] putative
6 persecutor is, or could become, aware of the applicant’s
7 possession of the disfavored belief or characteristic”)
8 (internal quotation marks omitted); Jian Xing Huang v. INS,
9 421 F.3d 125, 129 (2d Cir. 2005) (finding that a fear is not
10 objectively reasonable if it lacks “solid support” in the
11 record and is merely “speculative at best”).
12 With respect to her claim based on the birth of her two
13 U.S. citizen children, Huang appears to argue that the
14 agency erred in declining to assign probative weight to her
15 testimony and the documentary evidence that she submitted.
16 Contrary to Huang’s argument, the IJ thoroughly analyzed
17 Huang's testimony and documentary evidence, and reasonably
18 determined that Huang "failed to demonstrate that her fear
19 [was] objectively reasonable." See Xiao Ji Chen v. U.S.
20 Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006) (finding
21 that the weight afforded to an alien’s evidence in
22 immigration proceedings lies largely within the discretion
4
1 of the IJ). In addition, the agency did not err in
2 declining to assign probative weight to Huang’s testimony
3 and letters from her husband’s family members because they
4 were not material in that they did not detail the forced
5 sterilizations of similarly situated individuals, i.e.,
6 those who returned to China after giving birth to children
7 abroad. See Jian Hui Shao, 546 F.3d at 160-61; see also
8 Xiao Ji Chen, 471 F.3d at 342.
9 For the foregoing reasons, the petition for review is
10 DENIED. As we have completed our review, any stay of
11 removal that the Court previously granted in this petition
12 is VACATED, and any pending motion for a stay of removal in
13 this petition is DISMISSED as moot. Any pending request for
14 oral argument in this petition is DENIED in accordance with
15 Federal Rule of Appellate Procedure 34(a)(2), and Second
16 Circuit Local Rule 34.1(b).
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe, Clerk
19
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