09-0526-ag
Huang v. Holder
BIA
Nelson, IJ
A095 473 972
A095 473 973
A905 473 974
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.
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 25th day of April, two thousand twelve.
PRESENT:
JON O. NEWMAN,
ROSEMARY S. POOLER,
DENNY CHIN,
Circuit Judges.
_______________________________________
JIAN YI HUANG, JIN YAN YE, a.k.a.
YI GIN YONG, a.k.a. JIN YING, ELIS
HUANG, a.k.a. ELIS WONG,
Petitioners,
v. 09-0526-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondents.
______________________________________
FOR PETITIONERS: Henry Zhang, New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Francis W. Fraser, Senior
Litigation Counsel; Susan Houser,
Senior Litigation Counsel, Office of
Immigration Litigation, Civil
Division, 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 DENIED, in part, and GRANTED, in part.
Petitioners Jian Yi Huang and Jin Yan Ye, husband and
wife and natives and citizens of China, and Petitioner Elis
Huang, their minor child and a native and citizen of Italy,
seek review of a December 11, 2008, order of the BIA
affirming the August 4, 2006, decision of Immigration Judge
(“IJ”) Barbara A. Nelson denying their application for
asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). In re Jian Yi Huang,
Jin Yan Ye, Elis Huang, Nos. A095 473 972, A095 473 973,
A095 473 974 (B.I.A. Dec. 11, 2008), aff’g Nos. A095 473
972, A095 473 973, A095 473 974 (Immig. Ct. N.Y. City Aug.
4, 2006). We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
Under the circumstances of this case, we have reviewed
both the IJ’s decision and the BIA’s decision. See Yan Chen
v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
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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).
I. Forced Sterilization
Petitioners’ argument that the BIA erred in finding
that Petitioners Jian Yi Huang and Jin Yan Ye failed to
establish a well-founded fear of future persecution based on
the births of her three children in violation of China’s
family planning policy is foreclosed by this Court’s
decision in Jian Hui Shao v. Mukasey, 546 F.3d 138 (2d Cir.
2008). Although Petitioners are from Zhejiang Province and
the petitioners in Jian Hui Shao are from Fujian Province,
before the agency, as in their counseled brief to this
Court, Petitioners relied on country conditions evidence
either considered in Jian Hui Shao or related to Fujian
Province. See Jian Hui Shao, 546 F.3d at 158-68.
Petitioners argue that the BIA erred by failing to make
an explicit credibility finding before discounting testimony
and documentary evidence. However, the BIA did not discount
any of Petitioners’ evidence or testimony in affirming the
IJ’s alternative finding that they failed to meet their
burden of proof. Moreover, contrary to Petitioners’
assertion that the BIA held them to an “exceedingly high”
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burden of proof, there is no indication that the BIA
required them to demonstrate anything other than a well-
founded fear of persecution. See Jian Hui Shao, 546 F.3d at
156 & n.15.
Petitioners further argue that the agency failed to
give sufficient evidentiary weight to a letter from Jian Yi
Huang’s aunt, who was sterilized after giving birth to two
children in China. Contrary to Petitioners’ assertion, the
agency did not err in finding that the letter was not
material because it did not detail the forced sterilizations
of a similarly situated individual–namely, a Chinese
national who gave birth to children abroad. See Jian Hui
Shao, 546 F.3d at 160-61, 170-71.
Finally, the record would not compel a reasonable fact-
finder to conclude that Petitioners established a reasonable
possibility that they would face the imposition of penalties
amounting to economic persecution upon their return to
China. See Matter of T-Z-, 24 I. & N. Dec. 163, 170-75 (BIA
2007); see also Guan Shan Liao v. U.S. Dep’t. of Justice,
293 F.3d 61, 70 (2d Cir. 2002); Jian Hui Shao, 546 F.3d at
161-62, 164 n.25. Accordingly, the petition is denied, in
part, to the extent it challenges the agency’s determination
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that petitioners failed to demonstrate a well-founded fear
of persecution based on their violation of China’s family
planning policy.
II. Forcible IUD Insertion
However, the agency’s determination that Petitioner Ye
did not establish that she suffered past persecution based
on the alleged forced insertion of an intrauterine device
(“IUD”), is remanded in light of our decision in Mei Fun
Wong v. Holder, 633 F.3d 64 (2d Cir 2011).
To establish past persecution based on the forcible
insertion of an IUD, an asylum applicant must establish
that: (1) the IUD was inserted because of her resistance to
a family planning policy, or another protected ground,
rather than as a routine part of the population control
program; and (2) there were “aggravating circumstances.”
Xia Fan Huang v. Holder, 591 F.3d 124, 128-30 (2d Cir. 2010)
(according Chevron deference to the BIA’s decision in Matter
of M-F-W- & L-G-, 24 I. & N. Dec. 633 (BIA 2008)).
In Mei Fun Wong, we remanded for the agency to
articulate standards for determining whether an asylum
applicant has established aggravating circumstances and to
clarify how it determines whether the applicant was
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subjected to the forcible insertion of an IUD on account of
their resistance to China’s family planning policy, or other
protected grounds. Mei Fun Wong, 633 F.3d at 71-81.
For the reasons discussed in Mei Fun Wong, we cannot
evaluate the BIA’s determination that Ye did not establish
that she suffered past persecution when she was subjected to
the involuntary insertion of an IUD. See id. Ye asserted
that she was “persecuted on account of the coercive family
p[l]anning policy” because she “was forced to wear an IUD”
which “caused cramps and bleeding and irregular menstrual
cycles.” In support of her claim, she testified that the
Chinese government had “used force to drag [her] for IUD
insertion,” and that the Chinese government had refused to
remove the IUD after she reported the cramps and bleeding.
Moreover, the BIA has yet to clarify whether it
“categorically concludes that nexus cannot be established by
evidence that a person who resisted a population control
policy was compelled to submit to a practice, such as IUD
insertion, routinely performed in furtherance of that
policy.” Id. at 79. And it has not yet addressed whether
“aggravating circumstances designed to compel submission
. . . [can] demonstrate the requisite nexus between that
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persecution and an applicant’s opposition to the state’s
population control policy.” Id. at 80. Thus, we remand
this case to the BIA for further proceedings in light of Mei
Fun Wong.
For the foregoing reasons, the petition for review is
DENIED, in part, and GRANTED, in part, the order of removal
is VACATED, and the case is REMANDED to the BIA for
proceedings consistent with this decision. Petitioner’s
motion for a stay of removal is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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