NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-3090
___________
MIN HUANG,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A200-031-251)
Immigration Judge: Honorable Margaret R. Reichenberg
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 14, 2010
Before: SLOVITER, JORDAN and GREENBERG, Circuit Judges
(Opinion filed: April 15, 2010)
___________
OPINION
___________
PER CURIAM
Min Huang, a citizen of China, petitions for review of a Board of Immigration
Appeals (“BIA”) decision upholding the denial of his application for asylum and related
relief. For the reasons that follow, we will deny his petition for review.
I
Huang entered the United States in 2005 without inspection, and was placed in
removal proceedings. At a hearing in 2006, Huang applied for asylum, withholding of
removal, and relief under the Convention Against Torture (“CAT”).
As grounds for relief, Huang alleged that he converted to Christianity in 2004, and
that he regularly participated in underground church services in China, typically at fellow
congregants’ homes. Huang claimed that during an Easter celebration in 2005, police
raided the house where the services were being held and arrested him and other church
members. Huang stated that he was detained for seven days, beaten regularly, and forced
to promise that he would no longer attend underground churches. After his release,
Huang went to a hospital, where he was treated for a broken arm by a doctor named Li,
Wenbin. He claimed that he stopped attending church and soon fled the country.
In support of his claim for relief, Huang submitted, inter alia, a copy of the
medical record from his post-incarceration hospital visit. The Department of Homeland
Security submitted the medical record, along with other documents, for a consular
investigation. In June 2007, Huang received a copy of the consular report, which stated
that the hospital Huang claimed to visit did not employ a doctor named Li, Wenbin, that
portions of the medical certificate did not use normal terminology, and that the stamp on
the record could not be authenticated. At Huang’s May 2008 removal hearing, he was
unable to provide any explanation for the discrepancy between his testimony and the
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consular report, save for his assertion that Li, Wenbin was his doctor.
The IJ denied relief, reasoning that although Huang demonstrated that he was a
Christian, his inability to explain or resolve the inconsistencies between his testimony and
the consular report – despite having the report for nearly a year at the time of the hearing
– undermined the veracity of his past persecution claim. The IJ also determined that
Huang failed to show a well-founded fear of future persecution or a likelihood that he
would be tortured if removed to China. The BIA dismissed Huang’s appeal and he filed a
petition for review.
II
We have jurisdiction over the petition under 8 U.S.C. § 1252(a). Because the BIA
issued its own opinion, we review its decision rather than that of the IJ. See Li v. Att’y
Gen., 400 F.3d 157, 162 (3d Cir. 2005). However, we also look to the decision of the IJ
to the extent that the BIA defers to or adopts the IJ’s reasoning. See Chavarria v.
Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006). We review agency factual determinations
for substantial evidence, and we will uphold a factual determination “unless the evidence
not only supports a contrary conclusion, but compels it.” Zhang v. Gonzales, 405 F.3d
150, 155 (3d Cir. 2005) (internal citations omitted).
Huang raises three arguments in his petition for review. First, he argues that the IJ
and BIA violated his right to due process by relying on the consular report to deny his
past persecution claim. Aliens facing removal are entitled to due process protections.
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See Ezeagwuna v. Ashcroft, 325 F.3d 396, 405 (3d Cir. 2003). In the evidentiary context,
due process requires that evidence considered by the BIA be reliable and trustworthy.
See id. In Ezeagwuna, the agency denied relief, relying almost exclusively on a consular
investigation report which (1) contained multiple levels of hearsay, in that the letter’s
author was at least three people removed from the actual investigatory declarants,
(2) contained no explanation of what investigation actually took place, and (3) was issued
to the alien only a few days before the removal hearing. Id. at 406-08. Citing
Ezeagwuna, Huang contends that the BIA’s reliance on the consular report was
improper.1 However, Huang’s case is clearly distinguishable. We agree with the BIA,
which reasoned that, unlike the report at issue in Ezeagwuna, the consular report in
Huang’s case was prepared by the same individual who conducted the investigation, the
author was in direct contact with the organizations that analyzed Huang’s proffered
1
In its reply brief, the Government notes that, before the BIA, Huang argued that the
IJ acted improperly under Ezeagwuna, but failed to couch his argument in “due process”
language. In the Government’s view, then, we lack jurisdiction to entertain Huang’s
claim inasmuch as it raises a constitutional issue because he failed to exhaust the claim in
administrative proceedings. See Lin v. Att’y Gen., 543 F.3d 114, 120-21 & n.6 (3d Cir.
2008). The Government’s argument plainly lacks merit. As we have repeatedly held, “so
long as an immigration petitioner makes some effort, however insufficient, to place the
Board on notice of a straightforward issue being raised on appeal, a petitioner is deemed
to have exhausted her administrative remedies.” Joseph v. Att’y Gen., 465 F.3d 123, 126
(3d Cir. 2006). Huang’s reference to Ezeagwuna and accompanying analysis questioning
the reliability of the consular report were plainly sufficient to meet the exhaustion
requirement. Further belying the Government’s argument is the focus of Ezeagwuna
itself: our ultimate concern with the consular report in that case was whether its use as
evidence violated the petitioner’s right to due process.
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documents, and Huang received a copy of the report nearly a year before his removal
hearing. In short, the report in this case does not present the concerns we found
problematic in Ezeagwuna. Accordingly, we perceive no error in the Board’s reliance on
the consular report.
Second, Huang argues that the IJ erred in concluding that he did not demonstrate a
well-founded fear of future persecution. Specifically, he argues that the IJ failed to
consider whether Huang held a well-founded fear that he would be singled out for
persecution. We disagree. The IJ specifically addressed this issue, reasoning that, in
consideration of his apparently false medical report and the 2007 State Department
Country Report on China, which was the only background evidence presented, Huang
failed to present sufficient evidence to demonstrate either past persecution or a well-
founded fear of persecution based on his participation in Christian religious activities.
A.R. 56-57.
Finally, Huang argued that the BIA erred in determining that he failed to qualify
for asylum, withholding of removal, and CAT relief. In denying relief, the IJ reasoned –
and the BIA agreed – that Huang’s seemingly fraudulent medical report undermined the
veracity of his claim that he suffered past persecution. The IJ further reasoned that
because Huang failed to demonstrate past persecution, and because the record evidence
did not support a finding that a pattern or practice of persecution against Christians exists
in China, Huang also failed to demonstrate a well-founded fear of future persecution.
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Aside from his bare assertion that the Board erred, Huang has presented no argument that
would compel this Court to conclude that the Board reached an incorrect decision.
Because Huang was ineligible for asylum, we also agree that he was unable to
meet the higher standard applicable to applications for withholding of removal. See Sioe
Tjen Wong v. Att’y Gen., 539 F.3d 225, 236-37 (3d Cir. 2008). Nor did he demonstrate
eligibility for CAT protection. See Kamara v. Att’y Gen., 420 F.3d 202, 212-13 (3d Cir.
2005).
Accordingly, we will deny the petition for review.
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