                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-15-2009

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Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1839




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                                                         NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 08-1839
                                       ___________

                                   QIANG HUANG-LI,
                                                 Petitioner
                                         vs.

                  ATTORNEY GENERAL OF THE UNITED STATES
                     ____________________________________

                        On Petition for Review of an Order of the
                             Board of Immigration Appeals
                              (Agency No. A98-951-103)
                            Immigration Judge: Miriam Mills
                       ____________________________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   May 27, 2009
                 Before: FUENTES, WEIS and GARTH, Circuit Judges

                                (Opinion filed: June 15, 2009)
                                       _________

                                        OPINION
                                        _________

PER CURIAM.

              Petitioner Qiang Huang-Li seeks review of a final order of removal. For

the reasons that follow, we will deny the petition for review.




                                             1
                                             I.

              Huang-Li is a native and citizen of the People’s Republic of China.

According to Huang-Li, when he lived in China, he did so with family members in a

house that he had inherited from his father. In March 2001, that house and many others

were the subject of a demolition order issued by local government officials. The

government planned to clear the land and reimburse the residents of the demolished

homes. The proposed amount of compensation was objected to as unreasonable by the

residents, including Huang-Li.

              In May 2001, government cadres came to his home and threatened Huang-

Li’s family because of their failure to cooperate with the relocation plan. Two weeks

later, government workers arrived at Huang-Li’s home and forced his family outside so

that demolition could begin. Provoked by the treatment of his mother during this

incident, Huang-Li assaulted one of the workers. He was subsequently arrested and

administratively detained for fifteen days. Huang-Li testified that while in detention he

was interrogated and beaten by government officials. Not long after his release, Huang-

Li joined about three hundred others in front of a government office building to protest

the demolition. The police were called to disperse the crowd, and, fearing another arrest,

Huang-Li began his flight from China.

              Huang-Li entered the United States in September 2005 without being

admitted or paroled by immigration officials. Soon after, he joined the Party for Freedom

                                             2
and Democracy in China (“PFDC”), a group in the United States that opposes the Chinese

government. Eventually, Huang-Li was issued a Notice to Appear, charging him with

removability based on his unlawful entry. He conceded removability and requested relief

in the form of asylum, withholding of removal and protection under the Convention

Against Torture. He claimed that if returned to China, he would be jailed for his

opposition to the demolition of his house, and also for his political activities with PFDC

in the United States.

              After a hearing, the immigration judge (“IJ”) ordered Huang-Li removed,

finding that his account of pertinent events lacked credibility and sufficient proof. The

Board of Immigration Appeals (“BIA”) affirmed without opinion. Huang-Li then filed

this timely petition for review, asserting three issues for adjudication: 1) “Is Mr. Huang-

Li’s case a mixed motive case in which he showed that his political opinion was a central

reason for his arrest and torture?”; 2) “Is the BIA approach to mixed motive cases as

enunciated by Matter of S-P- . . . still good law in light of the demands of the REAL ID

Act?”; and 3) “Does the record support Mr. Huang-Li’s contention that a mixed motive is

appropriate in his case?”.

                                             II.

              We have jurisdiction to review a final order of removal under 8 U.S.C. §

1252(a)(1). Abdulai v. Ashcroft, 239 F.3d 542, 547 (3d Cir. 2001). However, “[s]ection

1252(d) of the Immigration and Nationality Act provides that the courts of appeals ‘may

                                              3
review a final order of removal only if - (1) the alien has exhausted all administrative

remedies available to the alien as of right.’” Hoxha v. Holder, 559 F.3d 157, 159 (3d Cir.

2009) (quoting 8 U.S.C. § 1252(d)(1)). “[I]ssue exhaustion as required by 1252(d)(1) is a

jurisdictional rule.” Id. at 159 n.3. Thus, an alien must “raise or exhaust his or her

remedies as to each claim or ground for relief [before the BIA] if he or she is to preserve

the right of judicial review of that claim.” Id. at 159.

              On appeal before the BIA, Huang-Li challenged the IJ’s adverse credibility

determination, and argued that he had “carried the burden of proof in his claim that he

was arrested in China for political reasons and that the Judge read the INA too narrowly.”

(A.R. 9, 11.) Notably, Huang-Li did not present any claims concerning “mixed-motive”

persecution in his brief or in his notice of appeal to the BIA. Therefore, the only claims

ripe for our review concern Huang-Li’s challenge to the IJ’s adverse credibility

determination and his allegations of past and prospective persecution on account of both

his opposition to the demolition of his house in China and his membership in PFDC.

                                              III.

              When the BIA issues an affirmance without opinion, “we review the IJ’s

opinion and scrutinize its reasoning.” See Dia v. Ashcroft, 353 F.3d 228, 245 (3d Cir.

2003) (en banc). We review both the IJ’s factual findings and her adverse credibility

determination for substantial evidence. See Briseno-Flores v. Att’y Gen., 492 F.3d 226,

228 (3d Cir. 2007); Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). The IJ’s adverse

                                               4
credibility determination will not be disturbed unless “any reasonable adjudicator would

be compelled to conclude to the contrary.” Dia, 353 F.3d at 249. Furthermore, because

Huang-Li filed his asylum application after the enactment of the REAL ID Act, the

inconsistencies, inaccuracies, or falsehoods upon which the IJ’s adverse credibility

finding is based need not go the heart of his claim. See Lin v. Att’y Gen., 543 F.3d 114,

119 n.5 (3d Cir. 2008).

              The IJ based her adverse credibility determination on several

factors, not least of which were Huang-Li’s failure to reasonably corroborate his

claims that he was beaten while in detention and that his membership in PFDC

would cause the Chinese government to detain or persecute him if he returns to

China. In particular, Huang-Li provided no documentation of medical

treatment, claiming that there was nothing to show because his injuries were

“internal”; nor did his mother’s letter make any mention that he was beaten

while detained. The IJ also noted that PFDC is not referenced in any of the

relevant Country Reports, and that Huang-Li failed to provide any other

reasonable corroboration to demonstrate that PFDC is an organization

recognized by China or that China targets members of that organization.

Moreover, the IJ found an inconsistency in Huang-Li’s testimony as to when he

had received a document from the Public Security Bureau regarding his

detention. In light of all these inconsistencies and failures to provide

                                             5
corroborating proof, the IJ found Huang-Li to be incredible.

                It is not enough that we might have found Huang-Li credible if we were

hearing his testimony in the first instance. Adverse credibility findings must be afforded

substantial deference, so long as they are supported by sufficient, cogent reasons. See

Butt v. Gonzales, 429 F.3d 430, 434 (3d Cir. 2005). We are convinced that such reasons

exist here. Therefore, we cannot say that “any reasonable adjudicator would be

compelled to conclude” that Huang-Li was a credible witness at his hearing. Dia, 353

F.3d at 249.1

                Accordingly, we will deny the petition for review.




   1
     Even assuming, arguendo, that Huang-Li could overcome the adverse credibility
determination, he would not be entitled to relief. When asked by his attorney on direct
examination, “[w]hat harm do you fear,” Huang-Li responded as follows: “Just probably I
would be put in jail.” (A.R. 85.) A fear of prosecution may constitute grounds for asylum
if the prosecution is motivated by one of the five enumerated factors, “and if the
punishment under the law is sufficiently serious to constitute persecution.” Shardar v.
Ashcroft, 382 F.3d 318, 323 (3d Cir. 2004). Here, neither condition is supported by the
record.
                                           6
