Wei Huang v. Holder

09-3614-ag Huang v. Holder BIA Morace, IJ A098 561 220 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 2 nd day of July, two thousand ten. 5 6 PRESENT: 7 PETER W. HALL, 8 GERARD E. LYNCH, 9 DENNY CHIN, 10 Circuit Judges. 11 _______________________________________ 12 13 WEI HUANG, 14 Petitioner, 15 16 v. 09-3614-ag 17 NAC 18 ERIC H. HOLDER, JR., UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 ______________________________________ 22 23 FOR PETITIONER: Donglai Yang, The Law Offices of 24 Donglai Yang, LLC, New Orleans, 25 Louisiana. 26 27 FOR RESPONDENT: Tony West, Assistant Attorney 28 General, Civil Division; Luis E. 29 Perez, Senior Litigation Counsel, 30 Office of Immigration Litigation; 31 Remi Adalemo, Attorney, Office of 32 Immigration Litigation, Civil 33 Division, United States Department 34 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 Petitioner Wei Huang, a native and citizen of the 6 People’s Republic of China, seeks review of an August 11, 7 2009, order of the BIA affirming the October 31, 2007, 8 decision of Immigration Judge (“IJ”) Philip L. Morace 9 denying his application for asylum, withholding of removal, 10 and relief under the Convention Against Torture (“CAT”). In 11 re Wei Huang, No. A098 561 220 (B.I.A. Aug. 11, 2009), aff’g 12 No. A098 561 220 (Immig. Ct. N.Y. City Oct. 31, 2007). We 13 assume the parties’ familiarity with the underlying facts 14 and procedural history in this case. 15 Under the circumstances of this case, we review the 16 IJ’s decision as supplemented by the BIA’s decision. See 17 Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The 18 applicable standards of review are well-established. See 19 8 U.S.C. § 1252(b)(4)(B); Jian Hui Shao v. Mukasey, 546 F.3d 20 138, 157-58 (2d Cir. 2008); Salimatou Bah v. Mukasey, 529 21 F.3d 99, 110 (2d Cir. 2008). 2 1 I. Claim Based on Huang’s Wife’s Abortion 2 In concluding that Huang failed to establish either 3 past persecution or a well-founded fear of future 4 persecution based on his wife’s forced abortion, the BIA 5 found that Huang did not establish that he: (1) resisted 6 China’s family planning policy; or (2) was harmed as a 7 result. See Shi Liang Lin v. Dep’t of Justice, 494 F.3d 8 296, 301 (2d Cir. 2007). Although Huang argues that he 9 endured emotional pain rising to the level of persecution as 10 a result of his wife’s abortion, he does not challenge with 11 any specificity the agency’s dispositive findings that he 12 failed to demonstrate that he resisted China’s family 13 planning policy or that any harm he endured resulted from 14 any such resistance. See id. at 309-10. Thus, the agency 15 reasonably denied his application for asylum on the basis of 16 his family planning claim. 17 II. Claim Based on Huang’s Practice of Falun Gong 18 Huang also argues that he established a well-founded 19 fear of persecution based on his practice of Falun Gong in 20 this country. To establish asylum eligibility based on a 21 fear of future persecution, an applicant must show that he 22 or she subjectively fears persecution and that this fear is 3 1 objectively reasonable. Ramsameachire v. Ashcroft, 357 F.3d 2 169, 178 (2d Cir. 2004). When the applicant’s fear of 3 persecution is based on activities undertaken in the United 4 States, he must demonstrate a reasonable possibility that 5 “authorities in his country of nationality are either aware 6 of his activities or likely to become aware of his 7 activities.” Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 8 (2d Cir. 2008). 9 Huang argues that the agency imposed an incorrect 10 burden on him by looking only at whether the Chinese 11 government was currently aware of his practice of Falun 12 Gong, without addressing whether the government was likely 13 to become aware of that practice. To the contrary, the IJ 14 noted that Huang’s involvement in the Falun Gong movement 15 consisted of attending a single protest and occasionally 16 distributing flyers. Given the minimal extent of Huang’s 17 activities, the IJ reasonably found that Huang’s claim was 18 “speculative and mere conjecture,” requiring a chain of 19 inferences unsupported by the record. Thus, we find no 20 error in the IJ’s determination that Huang failed to meet 21 his burden of proof. See id. 4 1 Because Huang was unable to meet his burden for asylum, 2 he necessarily failed to meet the higher burden required for 3 withholding of removal and CAT relief. See Paul v. 4 Gonzales, 444 F.3d 148, 156 (2d Cir. 2006). 5 For the foregoing reasons, the petition for review is 6 DENIED. As we have completed our review, any stay of 7 removal that the Court previously granted in this petition 8 is VACATED, and any pending motion for a stay of removal in 9 this petition is DISMISSED as moot. Any pending request for 10 oral argument in this petition is DENIED in accordance with 11 Federal Rule of Appellate Procedure 34(a)(2), and Second 12 Circuit Local Rule 34.1(b). 13 FOR THE COURT: 14 Catherine O’Hagan Wolfe, Clerk 15 5