10-1015-ag
Huang v. Holder
BIA
Holmes-Simmons, IJ
A095 841 435
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 3rd day of June, two thousand eleven.
PRESENT:
ROBERT A. KATZMANN,
RICHARD C. WESLEY,
DENNY CHIN,
Circuit Judges.
_____________________________________
GUANGZU HUANG,
Petitioner,
v. 10-1015-ag
NAC
UNITED STATES DEPARTMENT OF JUSTICE,
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondents.
_______________________________________
FOR PETITIONER: David A. Bredin, New York, N.Y.
FOR RESPONDENTS: Tony West, Assistant Attorney
General; Michelle Gorden Latour,
Assistant Director; Brendan P.
Hogan, Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED, that the petition for review
is DISMISSED in part and DENIED in part.
Guangzu Huang, a native and citizen of the People’s
Republic of China, seeks review of a February 26, 2010,
order of the BIA, affirming the July 8, 2008 decision of
Immigration Judge (“IJ”) Theresa Holmes-Simmons, which
denied his application for asylum, withholding of removal,
and relief under the Convention Against Torture (“CAT”).*
In re Guangzu Huang, No. A095 841 435 (B.I.A. Feb. 26,
2010), aff’g No. A095 841 435 (Immig. Ct. N.Y. City July 8,
2008). We assume the parties’ familiarity with the
underlying facts and procedural history of this case.
Under the circumstances of this case, we have
considered both the IJ’s and the BIA’s opinions “for the
sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237
(2d Cir. 2008) (internal quotation marks omitted). The
applicable standards of review are well-established. See 8
U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,
513 (2d Cir. 2009).
*
The IJ’s decision is incorrectly dated March 3,
2004.
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I. Asylum
In pretermitting Huang’s asylum application, the agency
found that Huang failed to present clear and convincing
evidence that the application was filed within one year of
his arrival in the United States. See 8 U.S.C.
§ 1158(a)(2)(B). Huang’s challenges to the agency’s finding
“essentially dispute[] the correctness of [the] IJ’s fact-
finding or the wisdom of his exercise of discretion and
raise[] neither a constitutional claim nor a question of
law.” Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315,
329 (2d Cir. 2006). Therefore, we lack jurisdiction to
review Huang’s arguments with respect to asylum, and dismiss
his petition for review in part. See id.; see also 8 U.S.C.
§ 1158(a)(3).
II. Withholding of Removal
Huang argues that the BIA erred in reversing the IJ’s
grant of withholding of removal based on Shi Liang Lin v.
United States Department of Justice, 494 F.3d 296, 308 (2d
Cir. 2007), in which we held that the forced abortion of an
applicant’s spouse did not constitute per se persecution of
the applicant. In Shi Liang Lin, we explained that “our
holding today should not be read to presage the reopening of
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cases of aliens who have already been granted asylum based
on” the forced abortion of a spouse. Id. at 314. Huang
asserts that the BIA erred in dismissing his withholding of
removal claim because the IJ initially found that he
suffered past persecution on the basis of his wife’s forced
abortions. Here, however, the BIA did not reopen Huang’s
removal proceedings to apply the holding of Shi Liang Lin
retroactively. Rather, because Huang’s removal proceedings
were ongoing due to his appeal of the IJ’s 2006 decision,
the BIA did not err in applying Shi Liang Lin to hold that
the forced abortions of Huang’s wife did not constitute past
persecution of Huang. See 8 C.F.R. § 1003.1(d)(3)(ii) (BIA
has the authority on appeal to review questions of law de
novo); cf. NLRB v. Coca-Cola Bottling Co., 55 F.3d 74, 78
(2d Cir. 1995) (“Appellate courts ordinarily apply the law
in effect at the time of the appellate decision.”).
Because an applicant’s spouse’s forced abortion is not
per se persecution of the applicant, Huang was required to
show that he was persecuted on account of his “other
resistance” to a coercive family planning policy. Shi Liang
Lin, 494 F.3d at 308-10; 8 U.S.C. § 1101(a)(42). Huang
argues that he established his eligibility for withholding
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of removal based on the persecution he personally suffered,
and fears upon his return, on account of his “other
resistance” to the family planning policy. However, the
only harm Huang claimed to have suffered was that family
planning officials pushed him against a wall causing him
“mild pain.” Accordingly, the agency reasonably found that
Huang failed to establish that he suffered past persecution
on account of his other resistance to the family planning
policy. See Jian Qiu Liu v. Holder, 632 F.3d 820, 822 (2d
Cir. 2011)(per curiam). Similarly, because Huang did not
provide any alternative basis for his fear of future
persecution, the IJ did not err in finding that he failed to
demonstrate that it was more likely than not that he would
suffer persecution, particularly in light of his testimony
that the officials never came back to look for him and no
warrant was issued for his arrest. See Paul v. Gonzales,
444 F.3d 148, 156 (2d Cir. 2006) (holding that withholding
of removal claims require “objective evidence of future
persecution”). Accordingly, the agency did not err in
denying Huang withholding of removal.
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III. CAT Relief
Contrary to Huang’s argument that the agency failed to
analyze his CAT claim separately, to the extent his
application for CAT protection was predicated on the same
facts as his withholding claim, the agency reasonably denied
Huang CAT relief on the same grounds it denied his
withholding claim. See Xue Hong Yang v. U.S. Dep’t of
Justice, 426 F.3d 520, 523 (2d Cir. 2005). Although Huang
now argues that he fears torture based on his illegal
departure from China, he did not raise this claim before the
BIA, nor does he point to any evidence in the record in
support of his fear of torture based on his illegal
departure. See Mu Xiang Lin v. U.S. Dep’t of Justice, 432
F.3d 156, 160 (holding that the BIA did not err in denying a
petitioner’s CAT claim based on her illegal departure
because she offered no “particularized evidence”). Huang’s
assertion on appeal that he fears torture due to the
“assistance and connection that he had with political
student groups” is not supported in any way by the record.
Finally, although Huang challenges the veracity of a 1998
State Department Country Conditions Report included in the
record, because, as the Government argues, he failed to
exhaust these arguments before the BIA, we decline to
6
address them in the first instance. See Lin Zhong v. U.S.
Dep’t of Justice, 480 F.3d 104, 122 (2d Cir. 2007).
For the foregoing reasons, the petition for review is
DISMISSED in part and DENIED in part. As we have completed
our review, the pending motion for a stay of removal in this
petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
7