Filed: Jun. 13, 2006
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 6-13-2006 Huang v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 05-3521 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "Huang v. Atty Gen USA" (2006). 2006 Decisions. Paper 908. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/908 This decision is brought to you for free and open access by the Opinions of t
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 6-13-2006 Huang v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 05-3521 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "Huang v. Atty Gen USA" (2006). 2006 Decisions. Paper 908. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/908 This decision is brought to you for free and open access by the Opinions of th..
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Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
6-13-2006
Huang v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3521
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"Huang v. Atty Gen USA" (2006). 2006 Decisions. Paper 908.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/908
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 05-3521
___________
JIAN FEI HUANG,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
___________
Petition for Review of an Order of the
Board of Immigration Appeals
(No. A79-305-524)
Immigration Judge: R. K. Malloy
___________
Submitted Under Third Circuit LAR 34.1(a)
June 8, 2006
Before: AMBRO, FUENTES, and NYGAARD, Circuit Judges.
(Filed June 13, 2006)
___________
OPINION OF THE COURT
___________
NYGAARD, Circuit Judge.
Petitioner, Jian Fei Huang, a citizen of the People’s Republic of China, petitions us
to review the decision of the Board of Immigration Appeals affirming the Immigration
Judge’s order denying Huang’s applications for asylum, withholding of removal and
relief under the United Nations Convention Against Torture. When the Board adopts and
affirms the decision of the IJ, we review the underlying decision of the IJ. See Gao v.
Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002). Because substantial evidence supports the
IJ’s determination that Huang failed to establish his eligibility for asylum1, his petition
for review will be denied.
I.
Huang fled China with the support of a Chinese human smuggling group and
arrived in the United States in 2000. He allegedly paid the snakeheads the equivalent of
$60,000 to smuggle him into the United States. He fraudulently entered this country
using a passport issued in the name of another person given to him by the snakeheads,
which they took away from him once he was within the United States. He was charged as
1.
Because Huang failed to sustain his burden to establish eligibility for asylum, he, a
fortiori, failed to meet the higher burden for establishing eligibility for withholding of
removal. See Zubeda v. Ashcroft, 333 F.3d 463, 469-70 (3d Cir. 2003) (discussing higher
burden of proof to establish eligibility for withholding of removal). He also failed to
establish that it was more likely than not that he would be tortured if removed to China,
either by or with the acquiescence of the government. See Wang v. Ashcroft,
320 F.3d
130, 134 (2d Cir. 2003) (observing that “torture is an extreme form of cruel and inhuman
treatment.”) (emphasis added)). We therefore discuss only the asylum issue.
However, we do not suggest that if an alien is ineligible for asylum or for
withholding of removal, he is automatically ineligible for relief under CAT. A claim for
relief under CAT is “analytically separate” from both asylum and withholding of removal
under the INA. Zubeda, 333 F.3d at 476. An adverse credibility finding for the purposes
of denying asylum and withholding of removal does not preclude an alien from
establishing a claim for relief under CAT. See
id. “[A] decision-maker must review
claims for relief under . . . [CAT] and consider relevant country conditions even where
adverse credibility determinations have precluded relief under the INA.” Tarrawally v.
Ashcroft,
338 F.3d 180, 188 (3d Cir. 2003).
2
subject to removal because he possessed no valid entry documents. In 2001, Huang
submitted an application for asylum based on past persecution and his fear of future
persecution because of his objections to and violations of China’s population control
policies.
At his removal proceedings, Huang was represented by counsel and conceded
removability but sought the relief of asylum, withholding of removal and protection under
CAT. Following a hearing on the merits, the IJ denied Huang relief and ordered him
deported. Huang, through his counsel, appealed to the Board and filed a motion to
remand for the consideration of previously unavailable evidence. The Board denied
Huang’s motion to remand and affirmed the IJ’s decision denying his applications for
asylum, withholding of removal and relief under CAT. This petition for review followed.
II.
To establish eligibility for asylum, a person must establish that he is a refugee,
which is defined as a person who is unable or unwilling to return to his native country
“because of persecution or a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group, or political opinion.” 8
U.S.C. § 1101(a)(42)(A); see Fatin v. INS, 12 F.3d 1233, 1238 (3d Cir. 1993). We
review the IJ’s decision that Huang failed to establish his eligibility for asylum under the
substantial evidence standard. See Abdille v. Ashcroft,
242 F.3d 477, 483 (3d Cir. 2001).
The IJ’s factual findings will be reversed only if “the evidence not only supports a
contrary conclusion, but compels it.”
Id. at 483-84 (emphasis added).
3
We conclude that the record supports the IJ’s decision that Huang failed to
establish his eligibility for asylum. Substantial evidence supports the conclusion that
even if Huang’s wife was, in fact, sterilized, he failed to persuasively establish that the
procedure was involuntary. Although Huang’s admission that neither he nor his wife
desired to have more children is not conclusive proof that she voluntarily underwent the
sterilization procedure, that testimony, when considered in conjunction with his wife’s
complete failure to mention that she was involuntarily sterilized in her statement to the IJ,
coupled with the lack of any other persuasive evidence, compels the determination that
Huang failed to establish that he either suffered past persecution or feared future
persecution if returned to China. He is therefore ineligible for asylum.
III.
Because Huang failed to establish that he suffered past persecution or possessed a
fear of future persecution, he is ineligible for asylum. He, a fortiori, failed to meet the
higher burden for establishing eligibility for withholding of removal. Substantial
evidence further supports the IJ’s denial of relief under CAT. Huang’s petition for review
will be denied, and the decision of the Board will be affirmed.
4
