Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-21-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4305




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NOT PRECEDENTIAL

                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                    Case No: 05-4305

                                  JIN FENG HUANG,

                                             Petitioner

                                             v.

                               ATTORNEY GENERAL
                              OF THE UNITED STATES,

                                             Respondent

                                  _________________

                       On Petition for Review of a Final Decision
                         of the Board of Immigration Appeals
                                 BIA No. A 79-087-550
                       Immigration Judge: Charles M. Honeyman
                                  _________________

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                 December 11, 2006

                       Before: SMITH and ROTH, Circuit Judges,
                              and IRENAS, District Judge *

                               (Filed: December 21, 2006)
                                  _________________

                               OPINION OF THE COURT
                                  _________________



   *
     The Honorable Joseph E. Irenas, Senior District Judge for the District of New Jersey,
sitting by designation.
SMITH, Circuit Judge.

       Jin Feng Huang, a native and citizen of the People’s Republic of China, appeals

the Board of Immigration Appeals’ (“BIA”) order affirming the denial of her claims for

asylum and withholding of removal by the Immigration Judge (“IJ”). For the reasons

stated below, we will deny the petition for review.

                                             I.

       Huang entered the United States on July 17, 2001 on a non-immigrant B-2 visa

with permission to remain until January 16, 2002. The former Immigration and

Naturalization Service (“INS”) served her with a notice to appear on February 19, 2002.

Huang filed an application for asylum and withholding of removal on January 29, 2003.1

At her removal hearing, Huang testified that although she had been baptized in August

2000, she had become a much more devout Christian since her encounter with the

immigration authorities, and she feared persecution by Chinese authorities should she

return and attempt to practice her religion as she does in the United States. She explained

that, if she were returned to her home in Fujian Province, China, she would join an

underground church in order to continue her worship. Huang claimed that she feared that

she would be persecuted as a result of joining such a church.



   1
    Although Huang’s application was filed more than one year after she entered the
United States, the IJ exercised his discretion in determining that extraordinary
circumstances existed because her hearing date under the notice to appear was set by the
court for more than one year after her arrival, and at the time the year expired she was still
seeking an attorney. See 8 C.F.R. § 208.4(a)(5).

                                              2
       The IJ issued an oral decision denying her application for asylum, withholding of

removal, and protection under the Convention Against Torture (“CAT”).2 The IJ found

her testimony credible, but determined that her claim was too speculative in that it

required the Court to accept several premises regarding future events which were by their

nature unable to be substantiated. In particular, the IJ found insufficient evidence to show

the likelihood that she would suffer mistreatment as a result of attendance at an

underground church. Petitioner offered no proof to substantiate her claim that she would

only attend unregistered churches upon her return to China, nor did she show that the

churches she intended to attend were subject to persecution. The IJ rejected her argument

that there is a pattern or practice of persecuting members of underground churches in

China such that an individual who is likely to join such a church is necessarily eligible for

asylum. Thus, the IJ concluded that she had not met her burden of proof and persuasion



   2
     Huang asserted a claim under the CAT before the IJ, but failed to assert that claim in
her brief before the BIA. Consequently, the government argues that she failed to exhaust
all of her administrative remedies as to this claim, and this court lacks jurisdiction to
review it. 8 U.S.C. § 1252(d)(1). Although failure to administratively exhaust a claim will
generally bar it from consideration, in the present case the BIA, on its own, elected to
address the CAT claim. See Zheng v. Gonzales, 

, 107-08 (3d Cir. 2005)
(failure to exhaust precludes review); Alleyne v. I.N.S., 

, 1182 (3d Cir.
1989) (same). Considering the Supreme Court’s instruction that “[t]he doctrine of
administrative exhaustion should be applied with a regard for the particular administrative
scheme at issue,” Weinberger v. Salfi, 

, 765 (1975), it is clear that the
purpose of the exhaustion requirement has been achieved in this case because the BIA
took the opportunity to resolve this issue prior to judicial intervention. See also
Bonhometre v. Gonzales, 

, 447 (3d Cir. 2005). Accordingly, Huang’s CAT
claim was effectively exhausted.


                                              3
that she has a reasonable possibility of future persecution, and denied her application for

asylum, withholding of removal, and withholding under the CAT. The IJ granted Huang’s

application for voluntary departure.

       Huang appealed the IJ’s decision to the BIA, which dismissed her appeal on

August 22, 2005 in a per curiam opinion. The BIA found no error in the IJ’s

determination that Huang failed to carry her burden of proof and persuasion that she

suffered past persecution or that she possessed a well-founded fear of persecution. The

BIA also agreed that she failed to carry her burden of demonstrating that it was more

likely than not that she would be tortured if she were removed to China. On September

19, 2005, Huang filed this petition for review.

                                            II.

       This court reviews final decisions of the BIA that are based on factual findings to

determine whether they are supported by substantial evidence. I.N.S. v. Elias-Zacarias,

, 481 (1992); Lusingo v. Gonzales, 

, 199 (3d Cir. 2005).

Because the BIA summarily affirmed the IJ’s decision, we review the IJ’s findings of fact

as conclusive unless any reasonable adjudicator would be compelled to conclude to the

contrary. 8 U.S.C. § 1252(b)(4)(B); Wang v. Gonzales, 

, 138 (3d Cir. 2005);

Abdulai v. Ashcroft, 

, 549 n.2 (3d Cir. 2001).

       The Attorney General has discretion to grant asylum to an alien who qualifies as a

“refugee.” See 8 U.S.C. § 1158(b)(1). An applicant may establish refugee status by



                                             4
demonstrating a well-founded fear of future persecution because of “race, religion,

nationality, membership in a particular social group, or political opinion,” if returned to

her prior country of residence. 8 U.S.C. § 1101(a)(42)(A); Kayembe v. Ashcroft, 

, 234 (3d Cir. 2003). Huang asserts that she presented a well-founded fear of

persecution based on a lack of religious freedom in China. We disagree.

       To qualify for asylum on the basis of fear of persecution, an applicant must show

both a credible subjective fear and an objectively reasonable basis for her fears. Lie v.

Ashcroft, 

, 536 (3d Cir. 2005); Chen v. Ashcroft, 

, 223 (3d Cir.

2004). Although the IJ believed that the petitioner’s testimony as to her fear was credible,

the IJ appropriately found that there was not an objectively reasonable basis for Huang’s

fears of persecution. The IJ noted that although the most recent State Department Country

Report for China indicated an increased governmental interference with certain

underground churches in some areas, the report also indicated a greater freedom to

worship than in the past in other areas. The IJ found the possibility of harassment or

repression in certain areas outlined in the report to be too attenuated to show that Huang’s

fear of persecution was reasonable. The IJ found that Huang’s testimony about a friend

who had experienced persecution as a result of attending an underground church and her

testimony that she had heard generally of governmental persecution of such churches did

not meet her burden of proof. See 

; 8 C.F.R. § 208.13(b)(2)(iii)(A)

(providing that applicants must either show that they would experience individual



                                              5
persecution or demonstrate a “pattern or practice in his or her country ... of persecution of

a group of persons similarly situated to the applicant on account of ... religion ... and ...

his or her own inclusion in, and identification with, such group.”). Although the country

report indicates that “[a]uthorities particularly targeted unofficial religious groups in

locations where there were rapidly growing numbers of unregistered churches, or in

places of long-seated conflict between official and unofficial churches, such as ... Fujian

Province,” this broad statement alone is insufficient to create a reasonable fear of

persecution.

       The IJ found that because Huang had not shown an objectively reasonable basis

for her fear of persecution so as to establish grounds for asylum, she had also not

established the clear probability of persecution required for withholding of removal. See,

e.g., Gabuniya v. Attorney General, 

, 320-21 (3d Cir. 2006). In addition, the

IJ determined that she had not established that it was more likely than not that she would

be tortured if removed to China by official action, and thus was ineligible for relief under

Article 3 of the CAT. See 8 C.F.R. § 208.16(c)(2).

                                            III.

       The BIA’s determination that Huang was not eligible for asylum will be upheld

because it is supported by substantial evidence on the record considered as a whole. A

reasonable fact finder could have found on this record that Huang did not establish an

objectively reasonable basis for her fear of persecution, and thus we will not disturb the



                                               6
IJ’s determination. Accordingly, we will deny Huang’s petition for review.




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