                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-5-2008

Huang v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1979




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                                                                  NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 07-1979
                                     ___________

                                 YU QUING HUANG,
                                          Petitioner

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES
                          _____________________

                         Petition for Review of an Order of the
                          United States Department of Justice
                             Board of Immigration Appeals
                                 (BIA No. A77 977 244)
                          Immigration Judge: Henry S. Dogin
                               ______________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     May 1, 2008

     Before: RENDELL, GREENBERG, and VAN ANTWERPEN, Circuit Judges

                                 (Filed: May 5, 2008)
                                     ___________

                              OPINION OF THE COURT
                                   ___________

PER CURIAM

      Yu Qing Huang, a native and citizen of China, petitions for review of an order of

the Board of Immigration Appeals (BIA or Board), which dismissed his appeal of an

Immigration Judge’s final removal order. We will deny the petition.
       Huang arrived in the United States in 2001 without a valid entry document. He

was served with a Notice to Appear charging him with the same, which he admitted. He

applied for asylum and related relief. Huang’s applications for relief were based on his

allegation that his “wife” was forced to have an abortion and that he feared he would be

sterilized and forced to pay a fine if he returned to China. Huang testified before an

Immigration Judge (IJ) that he married Mei Jiao Chen in a traditional ceremony, but that

both were underage, so they could not register their marriage. They lived together and

had a child, born in April 1999. They never registered their marriage, even after they

were of age. Huang learned in July or August of 2000 that his wife was pregnant again.

On or about January 13, 2001, a number of people broke into his brother’s house where

they were living, took his wife, who was seven months pregnant, and dragged her off for

an abortion. Huang was forcibly restrained and could not stop them. He was notified

about a week later that he owed a fine of 20,000 RMB, which he never paid.

       The IJ noted that Huang told airport officials that he had been detained and held

for a month, and also that his property was destroyed. In the hearing before the IJ, Huang

acknowledged that he made those statements, but said that the smugglers told him to say

them, and that they were not true. The IJ found that Huang was not entirely credible,

given in part the discrepancies between his testimony and his answers to airport officials.

The IJ acknowledged that this court had cautioned against relying on airport statements,

but reasoned that it was permissible to consider the airport statements in this case,



                                              2
because Huang was questioned in Mandarin, which he understood, and he acknowledged

that he made the statements in question. The IJ found that Huang had not been personally

persecuted.

       The IJ also questioned whether Huang had a “wife.” The IJ noted that he might be

willing to extend In re C-Y-Z-, 21 I&N Dec. 915 (BIA 1997) (en banc)1 if there was

evidence that a traditional ceremony actually took place as Huang testified, but noted that

none of the evidence mentioned a ceremony. The IJ noted that Huang did not name a

spouse in his asylum application (although he mentioned his wife in the narrative); that

exhibits from his wife and his older brother did not mention anything about a ceremony,

but instead mentioned only that Huang and his wife cohabitated. The IJ opined that

ceremony was important in the Chinese culture, and that the lack of any mention of a

ceremony was therefore especially telling. The IJ also found that the fact they had not

registered their marriage was a negative factor. The IJ denied relief.

       On appeal, the Board of Immigration Appeals (BIA), citing pages of the IJ’s

opinion, held that Huang “failed to credibly meet his burden of showing past persecution

and a reasonable possibility of suffering persecution on account of a protected ground



  1
    In C-Y-Z-, the Board held that an applicant who has established that his spouse has
undergone a forced sterilization procedure has established past persecution. Id. at 918.
This in turn establishes a regulatory presumption that the applicant has a well-founded
fear of future persecution, which only may be rebutted “by a showing, by a preponderance
of the evidence, that since the time the persecution occurred, conditions in the applicant's
country have changed to such an extent that the applicant no longer has a well-founded
fear of persecution if returned to his home country.” Id. at 919; 8 C.F.R. § 208.13(b)(1).

                                             3
upon returning to China.” The BIA, again citing pages from the IJ’s decision and from

the hearing transcript and exhibits, stated that Huang’s experiences in China “did not rise

to the level of persecution.” The Board cited Matter of S-L-L-, 24 I & N Dec. 1 (BIA

2006), which holds that an unmarried applicant may claim persecution related to a

partner’s coerced abortion only if he was persecuted for other resistance to a coercive

population policy, and then noted that although Huang had previously stated that he had

been arrested and detained and that property had been destroyed, Huang discounted those

statements in his testimony before the IJ.2 The BIA also found that Huang had failed to

meet the burden of showing eligibility for withholding of removal and protection under

the United Nations Convention Against Torture.

       Huang filed a petition for review in the Second Circuit, which was transferred to

this Court. We have jurisdiction pursuant to 8 U.S.C. § 1252(a). Because the BIA not

only adopted the IJ’s decision but also expanded upon it, our review encompasses both

decisions. Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). The Board’s factual




  2
    Huang also argued to the BIA for the first time that he would be persecuted on
account of his parents’ opposition to family planning policy. The BIA held that Huang
had not established that China had a pattern or practice of persecuting children of those
opposed to family planning policies. The BIA also noted that Huang had submitted
additional evidence, including a fine receipt, his daughter’s birth certificate and entry in a
household registration booklet, a letter from his “wife” and her household registration
booklet, a letter from his father, and two receipts from Western Union (the opinion does
not indicate what these receipts were for). The BIA noted that it could not consider new
evidence on appeal and held that the evidence did not warrant a remand. Huang has not
raised issues related to these holdings in his petition.

                                              4
determinations are upheld if they are supported by reasonable, substantial, and probative

evidence on the record considered as a whole. Immigration & Naturalization Serv. v.

Elias-Zacarias, 502 U.S. 478, 481 (1992). Whether an applicant for asylum has

demonstrated past persecution or a well-founded fear of persecution is a factual question

which is reviewed under the substantial evidence standard. See Gao v. Ashcroft, 299

F.3d 266, 272 (3d Cir. 2002). We also review an adverse credibility determination under

the substantial evidence standard. Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir. 2004).

Under this deferential standard of review, we must uphold the credibility determination

unless “any reasonable adjudicator would be compelled to conclude to the contrary.” 8

U.S.C. § 1252(b)(4)(B).

       Huang argues that the BIA did not expressly make an adverse credibility holding.

We disagree. The BIA’s decision states that Huang “failed to credibly meet his burden of

showing past persecution and a reasonable possibility of suffering persecution on account

of a protected ground upon returning to China.” (Emphasis added). The opinion then

references two segments of the IJ’s decision, one in which the IJ determined that Huang

lied to officials in his airport interview and credible fear interview; and another in which

the IJ found that Huang was not credible concerning his claim that he had a traditional

marriage ceremony with his “wife.”

       The adverse credibility determination concerning Huang’s marital status is




                                              5
supported by substantial evidence.3 See Chen, 376 F. 3d at 222. In his airport statement,

Huang stated that he was single. His asylum application does not list his spouse’s name.

Although Huang testified before the IJ that he had a traditional marriage ceremony, none

of the evidence he submitted supported that contention. Although in Balasubramanrim v.

INS, 143 F.3d 157, 162 (3d Cir. 1998) this Court warned that airport statements may not

be reliable because of the conditions under which they are conducted, here, as the IJ

recognized, the airport interview was conducted in Mandarin, and Huang acknowledged

that he made the statements that were recorded. See Chen, 376 F.3d at 224-25 (airport

interview may be considered where alien does not challenge manner in which interview

was conducted and he has not claimed that his statements were mischaracterized).

       The discrepancy about Huang’s marital status is substantial and goes to “the heart

of” his claim. Gao, 299 F.3d at 272. A “person who has been forced to abort a

pregnancy or to undergo involuntary sterilization” is deemed, by statute, to have been

subjected to persecution. Immigration and Nationality Act § 101(a)(42). The BIA has

extended this protection to the spouses of persons forced to submit to coercive family

planning policies, see Matter of C-Y-Z-, 21 I&N Dec. at 918-19, but it has declined to

offer similar protection to unmarried partners, see Matter of S-L-L-, 24 I & N Dec. at 9-

10. This Court has upheld the Board’s decision not to extend relief beyond spouses. See



  3
    The provisions of the Real ID Act that address the Court’s review of an adverse
credibility finding do not apply because Huang applied for relief before the Act’s
effective date. See Kaur v. Gonzales, 418 F.3d 1061, 1064 n.1 (9th Cir. 2005).

                                             6
Chen v. Ashcroft, 381 F.3d 221, 235 (3d Cir. 2004). Because there is substantial

evidence that Huang is not married, either officially or traditionally, Chen controls here.

       Huang has also argued that he suffered harm amounting to persecution in his own

right, as he “resisted” China’s family planning laws. Huang testified that his hands were

held behind his back and he was “crushed” to the ground when his girlfriend was taken

away. He testified that officials were seeking him to pay a fine. The BIA’s conclusion

that these incidents do not rise to the level of persecution is supported by substantial

evidence. Fatin v. v. INS, 12 F.3d 1233, 1243 (3d Cir. 1993) (holding that persecution

denotes “extreme conduct”). Huang also argues that he suffered emotional harm

amounting to persecution, and that the fine was so excessive as to constitute persecution,

but as he failed to raise these arguments before the Board, we are precluded from

considering them. See Xie, 359 F.3d at 246 n.8 (statutory exhaustion requirements are

jurisdictional).

       Because Huang failed to meet his burden of showing eligibility for asylum, he

necessarily failed to meet the higher burden of eligibility for statutory withholding of

removal. We also agree with the Board that Huang did not demonstrate any likelihood

that he would be tortured upon his return to China.

       For the foregoing reasons, we will deny the petition for review.




                                              7
