Filed: May 08, 2013
Latest Update: Feb. 12, 2020
Summary: 11-2993-ag Huang v. Holder BIA Balasquide, IJ A099 432 640 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
Summary: 11-2993-ag Huang v. Holder BIA Balasquide, IJ A099 432 640 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 T..
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11-2993-ag
Huang v. Holder
BIA
Balasquide, IJ
A099 432 640
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 Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 8th day of May, two thousand thirteen.
PRESENT:
ROSEMARY S. POOLER,
PETER W. HALL,
DENNY CHIN,
Circuit Judges.
_______________________________________
XIANG JIAN HUANG,
Petitioner,
v. 11-2993-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Yee Ling Poon, Robert Duk-Hwan Kim,
New York, New York.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Ernesto H. Molina, Jr.,
Assistant Director; Sheri R. Glaser,
Trial 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 DENIED.
Petitioner Xiang Jian Huang, a native and citizen of
the People’s Republic of China, seeks review of a June 30,
2011, decision of the BIA affirming the September 23, 2009,
decision of Immigration Judge (“IJ”) Javier E. Balasquide,
denying his application for asylum, withholding of removal,
and relief under the Convention Against Torture (“CAT”). In
re Xiang Jian Huang, No. A099 432 640 (B.I.A. Jun. 30,
2011), aff’g No. A099 432 640 (Immig. Ct. New York City
Sept. 23, 2009). We assume the parties’ familiarity with
the underlying facts and procedural history in this case.
We have reviewed the IJ’s decision as supplemented and
modified by the BIA. See Yan Chen v. Gonzales, 417 F.3d
268, 271 (2d Cir. 2005). The applicable standards of review
are well-established. See 8 U.S.C. § 1252(b)(4)(B); see
also Yanqin Weng v. Holder,
562 F.3d 510, 513 (2d Cir.
2009).
As a preliminary matter, Huang had a full and fair
opportunity to raise a claim based on his practice of
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Christianity before the IJ, and he failed to do so. His
September 2009 hearing was conducted roughly nine months
following what he asserts was his conversion to
Christianity. At the hearing, after Huang finished
testifying concerning his family planning claim, the IJ
asked him whether there was anything else important to his
case. Huang responded only that he sometimes went to church
and then his “memory becomes better.” CAR at 141-42. Huang
had ample opportunity to advance his religious persecution
claim before the IJ, and logic dictates he could easily have
done so when he spoke about going to church. The BIA did
not err in refusing to consider Huang’s claim of religious
persecution for the first time on appeal. See 8 C.F.R.
§ 1003.1(d)(3)(iv) (“the Board will not engage in
factfinding in the course of deciding appeals. A party
asserting that the Board cannot properly resolve an appeal
without further factfinding must file a motion for
remand.”); Matter of J-Y-C-, 24 I. & N. Dec. 260, 261 n.1
(BIA 2007) (noting that it is not appropriate for the BIA to
consider an issue not raised before an IJ for the first time
on appeal); Matter of Edwards, 20 I. & N. Dec. 191, 196-97
n.4 (BIA 1990) (an alien may not raise a claim on appeal
that he failed to raise in a prior hearing before the IJ).
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Turning to Huang’s family planning claim, Huang does
not challenge the agency’s determination that he did not
suffer past persecution. Absent a showing of past
persecution, therefore, an applicant seeking asylum must
demonstrate that he has a well-founded fear of future
persecution if returned to the country of removal, 8 C.F.R.
§ 1208.13(b)(2)(A); that is, Huang must show that he
subjectively fears persecution and that this fear is
objectively reasonable. See Diallo v. INS, 232 F.3d 279,
284 (2d Cir. 2000) (citing INS v. Cardozo-Fonseca,
480 U.S.
421, 431 (1987)). Although Huang testified that family
planning officials twice threatened him with sterilization,
he also conceded that despite those threats, he remained
unharmed. It was not unreasonable, therefore, for the
agency to have rejected as speculative Huang’s assertion
that he will be sterilized if removed to China on the basis
that this time family planning officials “really” mean it.
See Jian Xing Huang v. INS,
421 F.3d 125, 129 (2d Cir. 2005)
(a fear is not objectively reasonable if it lacks “solid
support” in the record and is merely “speculative at best”).
In reaching its determination, moreover, the agency
reasonably relied not only on the fact of the prior
unfulfilled threats, about which Huang testified, but also
4
on lack of any corroborating documentation. See Gui Ci Pan
v. U.S. Att’y Gen., 449 F.3d 408, 412 (2d Cir. 2006) (noting
that courts have “rejected [persecution] claims involving
‘unfulfilled’ threats”).
The agency having reasonably concluded that Huang
failed to establish a well-founded fear of persecution if
returned to China, it did not err in denying asylum or
withholding of removal. See Paul v. Gonzales, 444 F.3d 148,
156 (2d Cir. 2006). We note that Huang does not challenge
the agency’s denial of CAT relief.
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
removal that the Court previously granted in this petition
is VACATED, and any pending motion for a stay of removal in
this petition is DENIED as moot. Any pending request for
oral argument in this petition is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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