         12-644
         Huang v. Holder
                                                                                       BIA
                                                                                    Hom, IJ
                                                                               A087 435 787
                             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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 1st day of August, two thousand thirteen.
 5
 6       PRESENT:
 7                         RICHARD C. WESLEY,
 8                         DENNY CHIN,
 9                         SUSAN L. CARNEY,
10                              Circuit Judges.
11
12       _____________________________________
13
14       MIN HUI HUANG,
15                Petitioner,
16
17                          v.                                  12-644
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _______________________________________
23
24       FOR PETITIONER:                 Donglai Yang, New Orleans, Louisiana
25
26       FOR RESPONDENT:                 Stuart Delery, Acting Assistant
27                                       Attorney General; Mary Jane Candaux,
28                                       Assistant Director; Aimee J.
29                                       Carmichael, Trial Attorney, Office
30                                       of Immigration Litigation, United
31                                       States Department of Justice,
32                                       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 GRANTED.

 5        Petitioner Min Hui Huang, a native and citizen of

 6   China, seeks review of a January 31, 2012, order of the BIA,

 7   affirming a May 19, 2010, decision of Immigration Judge

 8   (“IJ”) Sandy K. Hom, denying his application for asylum and

 9   withholding of removal.    In re Min Hui Huang, No. A087 435

10   787 (B.I.A. Jan. 31, 2012), aff’g No.    A087 435 787 (Immig.

11   Ct. N.Y. City May 19, 2010).    We assume the parties’

12   familiarity with the underlying facts and procedural history

13   in this case.

14        Under the circumstances of this case, we have reviewed

15   both the IJ’s and the BIA’s opinions “for the sake of

16   completeness.”   Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.

17   2008).   The applicable standards of review are

18   well-established.    See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng

19   v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

20   I.   Corroboration

21        The agency’s finding that Huang did not meet his burden

22   of proof because he failed to submit corroborating evidence



                                    2
 1   is not supported by substantial evidence.       Although the

 2   agency identified what evidence should have been obtained

 3   and why such evidence was required, it neither explained why

 4   it believed the evidence was reasonably available,       nor

 5   evaluated Huang’s explanations for his failure to provide

 6   such evidence, including that he had not made a copy of his

 7   handwritten letter.    See   8 U.S.C. § 1158(b)(1)(B)(ii); see

 8   also Chuilu Liu v. Holder, 575 F.3d 193, 197-98 (2d Cir.

 9   2009); Kyaw Zwar Tun v. INS, 445 F.3d 554, 563-64, 568-69

10   (2d Cir. 2006).

11   II. Past Persecution

12       The agency’s finding that Huang did not suffer past

13   persecution also requires remand.       The IJ gave improper

14   weight to its determination that Huang’s resistance to the

15   family planning policies in China was not undertaken as part

16   of a group, or done publicly.       “[A]n applicant claiming

17   persecution for other resistance must demonstrate []

18   resistance to a coercive family planning policy, which can

19   cover a wide range of circumstances.”       Shi Liang Lin v. U.S.

20   Dep’t of Justice, 494 F.3d 296, 313 (2d Cir. 2007) (internal

21   quotations and alterations omitted)).       Therefore, the IJ

22



                                     3
 1   erred in its analysis of whether the harm that Huang

 2   suffered was on account of a protected ground.

 3       The BIA made the alternative finding that Huang’s past

 4   harm did not cumulatively amount to persecution because,

 5   inter alia, Huang’s testimony regarding the injuries he

 6   sustained in detention was too generalized to permit agency

 7   review.   This finding downplayed Huang’s detailed testimony

 8   and the custodial nature of the beatings Huang endured,

 9   which might raise his injuries to the level of persecution.

10   “The BIA must . . . be keenly sensitive to the fact that a

11   minor beating or, for that matter, any physical degradation

12   designed to cause pain, humiliation, or other suffering, may

13   rise to the level of persecution if it occurred in the

14   context of an arrest or detention on the basis of a

15   protected ground.”   Beskovic v. Gonzales, 467 F.3d 223, 226

16   (2d Cir. 2006) (internal quotations omitted).    If Huang’s

17   testimony was insufficient and required further fact-

18   finding, the “appropriate course [was to] remand to the IJ,”

19    see Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289,

20   296 (2d Cir. 2006) (per curiam), not to discredit the

21   testimony altogether.

22



                                   4
 1       The BIA did not otherwise analyze whether the harm that

 2   Huang suffered in detention amounted to past persecution.

 3   “[E]stablishing past persecution creates . . . a rebuttable

 4   presumption of . . . a well-founded fear [of future

 5   persecution.”    Kyaw Zwar Tun, 445 F.3d at 564.   Remand is

 6   therefore appropriate to determine whether the agency

 7   correctly placed the burden on Huang as to his fear of

 8   future persecution in China and, if not, whether the

 9   government can establish that any such fears were not well-

10   founded.We note that Huang’s peaceful presence in China

11   subsequent to his arrest is not enough, in itself, to rebut

12   the presumption that fear of future persecution is well-

13   founded.   See, e.g, Kone v. Holder, 596 F.3d 141, 149 (2d

14   Cir. 2010) (holding that alien’s return trip did not rebut

15   the presumption because “the government cannot satisfy its

16   burden . . . simply by showing that [applicant] enjoyed

17   periods with no new persecution or that [applicant] will not

18   perpetually be persecuted in her native country”).

19       For the foregoing reasons, the petition for review is

20   GRANTED, and the case is REMANDED for reconsideration of

21   Huang’s eligibility for asylum and withholding of removal.

22   As we have completed our review, any stay of removal that

23   the Court previously granted in this petition is VACATED,
                                   5
 1   and any pending motion for a stay of removal in this

 2   petition is DISMISSED as moot.     Any pending request for oral

 3   argument in this petition is DENIED in accordance with

 4   Federal Rule of Appellate Procedure 34(a)(2), and Second

 5   Circuit Local Rule 34.1(b).

 6                                 FOR THE COURT:
 7                                 Catherine O’Hagan Wolfe, Clerk
 8
 9
10
11




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